Commonwealth v. Werntz

Opinion by

Mr. Justice Mitchell,

The assignments of error in this case are in entire disregard of our rules, which are plain, specific and mandatorjn The assignments are the pleadings in this court, and are the only part of the case that remains of record here after the remittitur to the court below. They should therefore be self-explanatory and self-sustaining, giving in each assignment separately the offer with so much of the preceding or accompanying evidence as is necessary to the proper understanding of the offer, the ruling of the court upon it, and if testimony objected to be admitted so much of it as may suffice to show why it was injurious to the party excepting. The neglect of these requirements is not cured by putting the necessar3 matter in the bill of exceptions or elsewhere in the record or the paper-book. It belongs here whether it appear again elsewhere or not. It ought not to be necessary for us to repeat this so often as we are called upon to do. The court is always reluctant to deprive a party of a hearing in a serious criminal case, upon technical gromrds, but counsel who presume on such reluctance to disregard the rules should understand that they do so at great risk to their clients. In the present case only the gravity of the crime charged induces us to forego the enforcement of the rule that assignments not properly made will be disregarded.

The case is peculiar in the respect that it turns almost entirely on the credibility of the witnesses. On the part of the commonwealth the averment is of a killing by the prisoner in plain sight of the witnesses, and their testimony as to it is direct and positive. Nothing is left to inference or to deductions from circumstantial evidence. On the other hand the denial is equally direct, explicit and emphatic, and the defence charges rank perjury, and supports the charge by direct and positive testimony as to declarations made by the commonwealth’s witnesses at the time of the occurrence, absolutely irreconcilable with their testimony at the trial.

In this position of the case the defence offered to prove declarations made by the deceased as to who did the stabbing. The evidence was excluded as too remote in time or place, or both, to form part of the res gestae. These declarations were by the person best qualified to know the facts, and with the least inducement to distort them in any way. It is manifest that unless too remote they' were not only admissible but were of the very highest importance in the case. No fixed measure of time or distance from the main occurrence can be established as a rule to determine what shall be part of the res gestee. Each case must necessarily depend on its own circumstances to determine whether the facts offered are really part of the same continuous transaction. In the notable case of Hunter v. State, 40 N. J. Law, 495, 538, Beasley, C. J., adopts the definition of Wharton, Evidence, sec. 259, that “ the res gestee are the circumstances which are the undesigned incidents of the litigated act, which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable. . . . Their sole distinguishing feature is that they should be the necessary incidents of the litigated act; necessary in this sense, that they are part of the immediate preparations for, or emanations of such act, and are not produced by the calculated policy of the actors.” And with regard to declarations, the rule is well stated in 21 Am. & Eng. Ency. of Law, 102, that if they “are made under such circumstances as will raise the reasonable presumption that they are the spontaneous utterances of thought created by or springing out of the transaction itself, and so soon thereafter as to exclude the presumption that they are the result of premeditation and design, they will be admissible as part of the res gestte.”

Tried by either of these tests the evidence offered was admissible. The most specific offer was in the case of Dr. Birney. This witness was the police surgeon of the district, was at the polls and saw part at least of the occurrence. He testified that -’while he was at the door outside of the shed in which the fight took place, he heard a voice inside, which he recognized as that of Gallagher, the injured man, saying “the coon did it; ” that when Gallagher was brought out of the shed he repeated the same thing; and that witness followed him to the barber shop where he was carried, on the other side of the street and across a lot, and there dressed his wound. Witness was then asked whether Gallagher while lying on the floor of the shop had made the same or a similar declaration. This was excluded as too remote. The interval of time from the stabbing and the distance of the barber shop from the shed, do not appear with exactness, nor are they material, for it is apparent that they were not great, and that the continuity of the events was not broken. The declarations were by the party best informed and most interested, and were made at a time and place, to a person, and under circumstances, which effectually exclude the presumption that they were the result of premeditation and design. If such declarations were in fact made by Gallagher, they were the most material evidence in the case, and should have been admitted. The defence renewed the same offer in connection with other witnesses. It was error to exclude it.

There were some other errors of less importance which as the case must go back for retrial should be noticed.

The offer to prove that police officer Gleason received a stab or had his clothes cut in the room at that time but while the defendant was not there, should have been admitted. The testimony of the commonwealth’s witnesses was to the effect that the prisoner was the only person there who had a knife, and the testimony offered tended to show the contrary.

The testimony of Franks as to declarations by Michael Farrell when he came out of the shed should have been admitted. Farrell was one of the three witnesses for the commonwealth on whose veracity the whole case rested. The offer was to show that immediately after the occurrence, before he had time for premeditation or design, he had made statements entirely inconsistent with his testimony at the trial. The offer tended directly to impeach his credibility, and therefore was not only admissible but important.

The language of the charge quoted in the tenth assignment of error, was not happily chosen. The expression, “ whatever relevancy they (the declarations as to who did the stabbing) may' have as affecting the general credibility of some of the witnesses, yet they Avould not be of potent force in the case if you should expressly find from the other evidence affirmatively that no colored man Avas in the room at the time or could have inflicted the'wound,” tended to divert the minds of the jury from the weight of the declarations on the credibility of the witnesses for the commonwealth, which was the pinch of the ease. As already said there was nothing left to inference or circumstantial evidence. If the commonwealth’s witnesses were to be believed the prisoner’s guilt was directly and conclusively proved. But if it were shown that at the time of the occurrence they had made declarations which required the jury to disbelieve or even to seriously doubt their testimony' at the trial, then there was no case at all against the prisoner. The influence of the alleged declarations on the credibility of the witnesses was their principal importance.

So also the language in the eleventh assignment, in refusing to discharge the jury, that to do so, “ would do a wrong and defeat the ends of justice,” while proper enough to the legal understanding, was likely to be taken by the jury as a strong if not binding direction to them that it was their duty to convict the prisoner.

Judgment reversed and venire de novo awarded.