Commonwealth v. Clark

Opinion,

Me. Chief Justice Paxson :

The defendant was tried in the court below for the murder of William McCausland. The jury found him guilty of murder in the first degree. If guilty at all, there can be no doubt'as to the degree, as it was conceded the murder was perpetrated in the commission of a robbery.

The first specification is not properly assigned, and we might dismiss it without more. The answer to the question is not given, nor is the testimony printed, to enable us to judge whether the answer did the defendant any harm. As, however, the case involves the life of a human being, we will pass over what we regard as a palpable violation of the rules of court. We have referred to this disregard of our rules so often and so pointedly, that we are surprised so little attention is paid to it. In ordinary civil cases we do not notice errors improperly assigned, but the issue here is too momentous to enforce such a practice.

The offer of evidence complained of is as follows:

“ George Calvert, on the stand for the commonwealth: We propose to prove by this witness that about three weeks after the murder he was out hunting in the woods called ‘ Cloud’s Woods,’ and came across the defendant and a man named Newton Hunter, at or near an old coal mine; that he heard defendant say to Hunter, ‘ It will take all pap’s got to clear him ’; and in the same conversation he heard the word ‘ Mc-Causland’ used. This, for the purpose of showing guilty knowledge on the part of defendant.”

We must assume that the answer of the witness sustained this offer. The answer was not given, as before stated, but the case was argued here upon the theory that the witness testified as stated in the question. In order to understand the offer, it is proper to say that the father of the defendant, Frank Clark, Sr., was in prison, charged with this same murder, although at the time of the alleged conversation with Hunter he had not been arrested. Two other men, George Clark and Zach. Taylor, had previously been tried and convicted of McCausland’s murder. There was no direct evidence of the defendant’s presence at and participation in the murder, and the circumstantial evidence upon this point was weak, to state it in the mildest manner. We are, of course, embarrassed by the absence of the testimony, and I can only judge of it from the statements and arguments of the respective counsel. If we are led into error by reason of the meagre presentation of the ease, the fault is not ours.

This testimony was offered for the sole purpose of proving guilty knowledge on the part of the defendant. If competent at all, it was not competent for any other purpose. Guilty knowledge of a crime is a very different matter from the commission of the crime. And the guilty knowledge here is only shown after the fact. Had this defendant been indicted as an accessary after the fact, we are of opinion the evidence would have been competent. But he was indicted as a principal; and the guilty knowledge, not shown to have been acquired before or at the murder, was used against him to show his participation in the crime itself. There was not a word in the conversation that referred to the defendant’s commission of this murder. He was not speaking of himself at all. He merely said, “ it will take all pap’s got to clear him.” Even this was vague and indefinite. Clear him of what ? It does not follow that it was to clear him of McCausland’s murder. Even if it appeared clearly that the defendant was speaking of this murder, and that he had knowledge that his father participated therein, it would be a harsh rule to admit it as evidence of his own guilt as a principal. It is no answer to say that it was admitted for a specific purpose, and that it did the defendant no harm. On the contrary, I have no doubt it had a crushing weight with the jury. I can conceive a case where it would do little harm, and of circumstances where even such evidence might be admissible; but we have here very slight evidence outside of this particular matter, and the confession — to be referred to later — of the defendant’s guilt as a principal.

The remaining specification refers to the admission of the defendant’s confession or statement. We do not think the objections that it was obtained by duress, and was sworn to, are of much importance. The testimony upon this one point is given in the commonwealth’s paper-book, and it shows very conclusively that the statement — it was not a confession — was made of his own free will, and without either threats, or the promise of reward or benefit in the future. The law is always tender and merciful to a defendant. It will protect him against the use of a confession drawn from him by holding out inducements to make it; but, when a criminal wants to ease his mind by a voluntary confession, it would be a weak sentimentalism to interfere with his doing so. Nor do I see that its force as a statement is impaired by the fact that the justice of the peace administered an oath to him. It was a foolish, blundering act on the part of the justice, but it was voluntarily taken by the defendant. The facts bear no analogy to Commonwealth v. Harman, 4 Pa. 269. In that case a prisoner was brought before the justice, charged with homicide. The justice administered an oath to the prisoner, and theii told him: “ If you do not tell the truth, I will commit you.” Under such circumstances we are not surprised that Chief Justice Gibson condemned the conduct of the justice in this strong language: “ The administering of an oath by the magistrate, under such circumstances, was a gross outrage upon the accused. Any information drawn by it, or subsequently given on its basis, is inadmissible.” The fact must not be overlooked that a defendant in a homicide case may now take the stand, and be sworn as a witness on his own behalf. There would seem to be no good reason why he may not of his own motion go before a magistrate, and make a voluntary statement under oath. ■ It is quite a different matter where the oath is administered against his will.

"We see nothing, then, in the circumstances under which this statement was made to exclude it. But we think it was inadmissible upon other grounds. There is not a word in it which can be construed into an admission of defendant’s participation in the murder. The most that can be fairly claimed for it is a confession of guilty knowledge after the fact. It would have been proper evidence had he been on trial as an accessary after the fact. But he was not on trial for that offence. It was a damaging piece of testimony, and in our opinion should have been excluded.

The judgment is reversed, and a venire facias de novo awarded.'