Commonwealth v. Pipes , 158 Pa. 25 ( 1893 )

Opinion by

Mr. Justice Mitchell,

Under the charge of the learned court, the purpose of the deceased to commit a felony, in entering the prisoner’s stable, was an important fact, indeed it was stated to the jury as part of a “ vital inquiry ” for them. All evidence therefore which bore directly on such inquiry, was relevant and admissible, even though it incidentally tended to show the commission by the deceased of a crime not part of that on trial. The two offers included in the first and second assignments of error were clearly within this principle. The presence of the deceased inside of a locked stable, near midnight, was of itself very strong evidence that he was there with some criminal intent, and what this intent was, would be made clear, if it should be shown, as was offered, that' part of a harness belonging to the prisoner had been stolen, that it had been in the possession of the deceased, and that the latter had traded it to another person with a promise to supply the missing part. Evidence to that effect was admissible. It did not come within the general rule that one crime cannot be introduced as evidence of another separate and unconnected. Such evidence, as was said in Goersen v. Com., 99 Pa. 388, “ cannot be received to impeach (the prisoner’s) general character, nor merely to prove a disposition to commit crime. Yet under some circumstances evidence of another offence by the defendant may be given. Thus it may be to establish identity; to show the act charged was intentional and willful, not accidental; to prove motive;'''’ etc. Examples of the exceptions to the general rule may be found in Com. v. Ferrigan, 44 Pa. 386; Kramer v. Com., 87 Pa. 299; Goersen v. Com., supra; and Com. v. Johnson, 133 Pa. 293. The first and second assignments must be sustained.

While the point is not expressly raised on this record yet as the case must go back for another trial, it is proper to call attention to the act of April 22, 1863, sec. 2, P. L. 531, by which the willful and malicious entry of a stable etc., either by day or by night, with or without breaking, with intent to commit any felony therein, is itself a felony. If therefore the deceased was in the stable with intent to steal the harness, he had committed a felony, though the actual larceny was not completed, and the right of the appellant to pursue and arrest him must be determined as in cases of felony actually committed, not of a felony attempted but abandoned by a fleeing criminal.

The fourth assignment must also be sustained. While it was entirely proper to call the jury’s attention to the prisoner’s interest, as affecting his credibility, and while-the terms in which the learned judge did so might be correctly understood by him and bjr members of the bar, familiar with legal distinctions, the general effect of the charge on this point was to discredit the prisoner as a witness and to lead the jury to throw out his testimony except where it was corroborated. This is the usual rule as to accomplices, not as to defendants, and in a case where the prisoner was necessarily the only witness as to the actual circumstances of the shooting it put upon him a greater burden than the law imposes.

Judgment reversed, and venire de novo awarded.