Commonwealth v. Craig , 1902 Pa. Super. LEXIS 37 ( 1902 )

Opinion by

Rice, P. J.,

1. This prosecution was commenced in June, 1901. The indictment was returned a true bill on September 10, and on the following day the defendants made a motion to quash the indictment based on the ex parte affidavit of Craig. He alleged certain facts tending to show that Samuel Barner, one of the grand jurors, was disqualified by reason of bias, also that “ he had no knowledge of the same ” until the day the affidavit was made. But he did not allege, nor was there any evidence given on the hearing of the motion, that the defendants had made any investigation as to the qualifications of the grand jurors before the day of their meeting, or that they had not had opportunity to do so. Nor is it apparent that the facts could not have been learned by reasonable diligence. All that the court had before it relative to the defendants, prior knowledge of the objection to the grand juror, and their diligence in raising it, was the allegation above referred to of the affidavit. This ex parte affidavit had served its purpose when it was received by the court as ground for entertaining the motion; the court was not bound to treat any of its allegations as verity in the disposition of the motion. Therefore, the only evidence before the court below upon the motion to quash, and the only evidence properly before us for consideration in that connection, is the testimony of the grand juror himself. This fails to establish the more serious allegations contained in the affidavit. In reviewing its action in overruling the motion, much weight is to be given to the judgment of the court below in whose presence the grand juror appeared and by whom his manner and conduct as well as his language were scrutinized. Nothing short of palpable error in its decision would justify a reversal of it. Moreover, it is well settled that a grand juror may be challenged for cause, but it is not the law that what might have been ground of challenge as to a particular grand juror is, iinder all circumstances, ground for quashing the indictment. When the objection to the grand juror was known, or might have been known by the exercise of reasonable diligence, and might have been interposed by challenge, but was not, we think it clear, both upon principle and authority, that a refusal to quash the indictment for the same cause is not reversible error. In Holland v. Commonwealth, 82 Pa. 806, 322, the objection to the two grand jurors was as serious as that disclosed by the testimony of the grand juror in this case, but the court held, that while it might have been a ground of challenge, it was not ground for quashing the indictment.

2. The assignment that the court erred in refusing to arrest the judgment must be overruled for the obvious reason that no ground for the arrest appears of record. The depositions taken in support of the motion are not part of the record: Alexander v. Commonwealth, 105 Pa. 1; Commonwealth v. Bradley, 16 Pa. Superior Ct. 561.

3. In Alexander v. Commonwealth, supra, it was declared that it was not the intendment of the act of 1874, allowing exceptions in criminal cases, “ that decisions which have always rested in the sole discretion of the court where the cause was tried should be made subject to exception and review.” Among the rulings therein expressly referred to by the court are, a refusal to postpone the trial, and a refusal of an application for an attachment for an absent witness. We do not say that in a plain case of abuse of discretion the action of the court in such matters might not be subject to review. Be that as it may, we do not think such a case is presented by the third and fourth assignment of errors, which, relates to what took place in the hearing of the motion to quash. The defendants declared in their affidavit that they were prepared to prove their allegations, and asked leave to call their witnesses for that purpose. Leave was granted, and they entered upon the hearing without suggesting that they were not prepared. After they had examined the grand juror, they asked for an attachment for an absent witness who lived in another county. In such circumstances, the refusal to suspend the hearing of the preliminary motion, and thus delay the trial of the case, is not ground for reversal. ' See Commonwealth v. Dietrich, 7 Pa. Superior Ct. 515.

4. It is well settled in Pennsylvania, that although the uncorroborated testimony of an accomplice should be received with caution, yet there is no rule of law forbidding a conviction upon his evidence alone: Carroll v. Commonwealth, 84 Pa. 107; Kilrow v. Commonwealth, 89 Pa. 480; Ettinger v. Commonwealth, 98 Pa. 338; Cox v. Commonwealth, 125 Pa. 94. As was said in Ettinger v. Commonwealth, the principle which allows the testimony of an accomplice to go to the jury for their consideration necessarily involves the right to believe and act upon it. Hence, no error was committed in refusing the defendant’s first point (fifth assignment) in which they asked the court not merely to advise, but to charge the jury to acquit. It is the duty of the court to admonish the jury of the danger of convicting upon the uncorroborated testimony of an accomplice, and it is common practice for the courts to advise them not to do so. But no set form of expression in which such admonition and advice must be given has been prescribed. In this case the defendants presented seven points, all of which were unequivocally affirmed, excepting the first, which for the reasons above given could not be affirmed. All of these points were well calculated to impress upon the jury the duty to exercise great care in weighing the testimony and to give to the defendants the benefit of every reasonable doubt, and the second was directed expressly to the caution that ought to be observed in accepting and acting on the uncorroborated testimony of an accomplice. It was as follows: “ The evidence of Nicholson and Battles, who are self-confessed participators in the crime charged in this indictment, coming as it does from a polluted source, should be received with great caution and closely and doubtingly examined by the jury.” The trial judge did not stop with a merely perfunctory affirmance of the point, but emphatically reiterated the essential parts of it in his answer. After a very careful examination of the evidence, we see no reason to doubt that the jury gave due heed to the instructions. One of latest, if not the latest, utterances of the Supreme Court upon the subject is contained in the opinion of Chief Justice Paxson in Cox v. Commonwealth, 125 Pa. 94: “A jury may believe an uncorroborated accomplice, and if his testimony produces in their minds a conviction of the defendant’s guilt, beyond a reasonable doubt, they may convict. If the testimony of the accomplice, his manner of testifying, his appearance upon the witness stand, impress a jury with the truth of his statement, there is no inflexible rule of law which prevents a conviction. In such case it is for the trial judge who also heard the witness, noticed his manner and appearance upon the stand, and who can judge equally with the jury as to his credibility, to say whether he is satisfied with the verdict. If both the jury and the court are satisfied that he has told the truth, there is no reason why the verdict should not stand. If we lay down an inflexible rule in regard to corroboration, there may be instances when criminals will escape although both jury and court are satisfied beyond a reasonable doubt of their guilt.” Here the defendants evidently appreciated the difficulty in the way of an affirmance of their first point and framed their second point to meet the contingency of a refusal of the former. Having obtained from the court the caution to the jury which they asked for, we are of opinion that they have no reason to complain that the court did not go further.

5. The chickens were stolen on a Saturday night in January, 1900. According to the testimony of one of the accomplices, they were put in bags which were taken by Craig with the declaration that he would sell them on Monday. He testified further that on Monday afternoon Craig paid him part of the price he had received. In view of this testimony we cannot say that it would have been wholly irrelevant to show that Craig sold two bags of chickens early on a Monday morning in January, 1900. But the commonwealth failed to prove the fact alleged. Hence we cannot see that the overruling of the objection, which is the subject of the sixth assignment, even if erroneous, harmed the, defendant. The appellant must not only establish the existence of an error in the proceedings below, but that the error has tended to his injury. It is not sufficient, as a general rule, to show that an improper question, either in form or substance, had been put to a witness; it must appear that an answer was received which tended to injure the case of the appellant: Commonwealth v. Kay, 14 Pa. Superior Ct. 376. See also Philadelphia v. Reeder, 173 Pa. 281. It is very clear that no evidence was given by the witness, Fickes, which could by any possibility have harmed the defendants. The failure of the commonwealth to make good its offer would more probably operate with the jury in the defendants’ favor. Moreover, no motion was made to strike it out, nor was the court asked to instruct the jury to disregard it, as might have been done upon the ground that it did not come up to the offer. See Commonwealth v. Bell, 166 Pa. 405. In any way that the assignment may be viewed, we think it should be overruled.

6. If the constable who made the information upon which the warrant was based had been called as a witness and had fixed the date of the larceny differently, the information might have been admissible in evidence to contradict him. But we are of opinion that it was not admissible, either on the part of the commonwealth or the defendants, as primary evidence, of the date of the larceny.

7. It is urged in support of the eighth and ninth assignments, that where, on cross-examination, a party denies the making of statements which tend to show his bias or interest, witnesses may be called by the opposing party to contradict him and thus affect his credibility with the jury. As was said in one of the cases cited by the appellants’ counsel (Geary v. People, 22 Mich. 220), if the witness Nicholson had expectation of immunity depending on defendants’ conviction, or on his giving testimony to incriminate them, it was proper that the jury should know it; and if satisfied on that point, they might not regard his testimony just as they would if no such interest existed. But, to say nothing of the vagueness of the offers, the manifest objection to them is that the statement denied by Nicholson and offered to be proved by the defendants was not in terms, or in effect, that he had been promised or expected immunity if he testified against the defendants. To be more explicit, the states ment that “ he had been promised,” by some unnamed person, “ to be left out at court,” coupled with the statement, “ that he believed they were going back on him,” would tend to show that he had no expectation based on the promise that had been made. But aside from that, there is nothing in the statement to show that his being “left out at court” was in any way dependent upon the conviction of the defendants or the testimony that he might give against them. If, therefore, the testimony had been admitted, it would not have shown that the witness was affected by bias or interest; and it is well settled that in order to impeach a witness by proof of contradictory statements made by him, it is essential that such statements have reference to some matter which is relevant and material to the issue on trial. The ruling in Hester v. Commonwealth, 85 Pa. 139, at p. 157, fully sustains the ruling of the court below upon these, offers.

8. It is legitimate cross-examination of an ordinary witness, who has testified in chief that what purports to be his signature, was not written by him, to call upon him to write, in order that such writing may be compared with the disputed writing for the purpose of contradicting him. The same must be true in the case of a defendant in a criminal' case who has offered himself as a witness, unless, as has been suggested, he is at liberty to stop at any point he chooses. But this latter doctrine is contrary to the great weight of authority. A defendant in a criminal case cannot be compelled to testify, and under our statute no inference can be drawn from, nor comment be made on, his failure to do so. But by consenting to take the stand and swearing to tell the truth and the whole truth, he waives his constitutional privilege, and may be cross-examined in the same manner as any other witness. There is this difference, however, between an ordinary witness, and a defendant testifying in his own behalf; the former goes upon the stand by compulsion, the latter voluntarily. Having waived his constitutional privilege to keep silent, he cannot give testimony which makes in his favor, and then object to legitimate cross-examination, upon the ground that his answers will crim-inate him : Commonwealth v. House, 6 Pa. Superior Ct. 92, 108, and cases there cited. See also People v, Gardner, 28 L. R. A, 699, añd notes. There was, therefore, no error in the ruling which is the subject of the tenth assignment.

9. The record does not show that the defendants were present when the verdict was rendered ; nor is it imperatively necessary in cases of this class that it should: Holmes v. Commonwealth, 25 Pa. 221. And as the depositions submitted in support of the motion in arrest of judgment are not part of the record, we might properly dismiss the eleventh assignment without further comment. It is not necessary, however, to put the decision on the technical ground. The question sought to be raised by the assignment was ruled in Lynch v. Commonwealth, 88 Pa. 189, where it was held, quoting the language of Chief Justice AGnew, that “ it cannot be doubted, even if arraignment be necessary as a fact in a trial for larceny, that mere voluntary absence at the rendition of the verdict, by one out on bail, who has appeared, and been tried regularly, is not a fatal error.”

The judgment is affirmed and the record remitted to the court below to the end that the sentence be fully carried into effect.