Commonwealth v. Hills

Dewey, J.

1. The incompetency of a person as a witness from defect of religious belief is not to be presumed. When alleged as a ground of exclusion, it must be proved. The evidence is to be heard, and the question to be decided by the presiding judge; and whether upon the whole evidence, the fact is established that the proposed witness is an atheist, or “ one who disbelieves in the existence of a God, who is the re-warder of truth, and the avenger of falsehood,” is a question solely for the presiding judge, and as a question of fact not subject to any exception, or appeal to this court. If an erroneous view of the law was taken as to the admission or exclusion of an atheist as a witness, that might properly be brought before us for revision, but not the judgment of the court as to the proof of the facts, or the weight of the testimony. The present case presents no other question on this point, than one of the weight of evidence offered upon the question whether Dorman was an atheist; and the ruling of the judge of court of common pleas upon that question, is not the ground for any exception.

2. The question raised as to the ruling of the presiding judge limiting the cross-examination, and excluding questions as to collateral matters, the answers to which might disgrace the witness, or criminate him as a participator in other distinct offences, was considered in the case of Commonwealth v. Savory, argued at the present term, post, 535, and we refer to that case for the reasons for overruling this exception.

3. The testimony that Brackett and Dresser, about the period of the alleged larcenies, were often seen in company going out in the evening and returning home together the next morning, was admissible, to be taken in connection with all the other facts in the case, tending to show these persons were guilty of the larcenies alleged to have been perpetrated by them. It may have been very slight, and certainly of no effect, standing alone, but it was not incompetent evidence, and might in connection with other facts, become important evidence. Nor was the government in establishing the commission of these larcenies thereby confined to the precise days named by the witnesses as those on which they particularly remembered seeing these persons together in the manner above stated.

4. The testimony of Palmer, as to the marks on the pantaloons he saw on Hilliard, was competent. If it was necessary to show any reason for not producing them, before the admission of this evidence, that reason was furnished.

5. The further and graver question is that of the joinder of distinct offences in one indictment, as was done here. The counsel for the defendant assumes that these charges, as stated in the different counts, are felonies. That may be somewhat questionable, and certainly would be so, unless our recent decision in the case of Rohan v. Sawin, 5 Cush. 281, may be considered as having settled that the crime of receiving stolen goods, knowing them to be stolen, is a felony. For the purpose of that case, and as affecting the right of the officer to arrest without a warrant, the case of receiving stolen goods, knowing them to have been stolen, was treated as a crime of the same grade as larceny, and one which would equally justify an arrest by an officer without a warrant. In England, -where greater strictness prevails as to the joinder of different felonies than with us, it has not been deemed improper to join in the same indictment distinct charges of burglary and the receiving stolen goods, knowing them to be stolen. Rex v. Hartall, 7 Car. & P. 475; Regina v. Beeton, 2 Car. & Kirwan, 959. In the view we take of this matter, it is unnecessary to consider particularly the question whether these charges are felonies, inasmuch as we are satisfied that the long established practice in this commonwealth has been to present distinct larcenies in the same indictment, and also distinct offences of receiving stolen goods in the same indictment, in different counts. It has beep considered to be no objection to this practice that the charges were felonies, provided that they were offences of the same general nature, requiring the same mode of trial, and having the punishment annexed to them of a like nature. In the case of Carlton v. Commonwealth, 5 Met. 532, this practice was fully recognized and sanctioned. It is always open to the presiding judge to order a separate trial on each distinct charge, when there is any reason for supposing that the defendant will be perplexed in his defence, or unnecessarily embarrassed by being put on trial for two distinct offences. We see no good reason for holding that it is illegal to present in the same indictment felonious offences of a similar character, and having a like punishment. In misdemeanors, it is admitted that this may be done, and the distinction set up as to felonies, as a class, is by no means a satisfactory distinction, or based on any sound principle; as many petty offences, as, for example, larcenies of the most trifling amount have always heretofore, and until the very recent St. of 1852, c. 4, been denominated felonies.

Under the limitation as to the nature and character of the offences joined, as was very fully and properly stated by the presiding judge, the court are of opinion that distinct felonies may be charged in the same indictment, and that the ordering of separate trials in such case is a matter to be decided by the presiding judge. The result is that all the exceptions taken are overruled. Exceptions overruled.