Gray v. Commonwealth

Mr. Justice Paxson

delivered the opinion of the court, November 20th 1882.

This cause was argued here as upon a motion for a new trial, and two of the assignments of error are to the refusal of the court to grant it. We ought not to be called upon at this late day to say that it is not within the line of our recognized duties to correct supposed errors in the lower courts in this manner. Nor are capital cases an exception to this rule. We are not jurors, and are not called upon to weigh the evidence even when a human life is at stake, further than to say, when called upon to do so in an orderly manner, whether there is sufficient evidence to submit to the jury upon a particular question of fact. If the jury make a mistake the remedy is a motion for a new trial in the court below. If a new trial is refused where upon the evidence it ought to have been granted, and the judgment is affirmed here upon the law of the case, the only remedy is an appeal to the pardoning power. It is foreign to our duties to interfere in such cases, nor do we see that any practical good would result from our assuming such a jurisdiction. It is better for the administration of the criminal law that each department of the government concerned therein should confine itself to those duties which the law has assigned to it, and which long experience has shown to be wise and proper.

The foregoing remarks are made without any reference to the merits of this particular case, and seemed to be called for by the manner in which it was presented. I will now proceed to discuss briefly the questions of law presented by the record.

The principal points pressed upon the argument at bar were, 1st. That the corpus delicti was not sufficiently proved, and 2d. That in the absence of such proof evidence of the prisoner’s confession was improperly received. The 2d and 5th assignments of error were intended to cover the first proposition, but they fall short of it. They merely allege error in admitting the testimony of II. A. Rudolph and Mary McCready stating their belief, and the grounds of it, that the skull and jaw bone, produced before the jury, were those of Mrs. McCready, the deceased, for whose murder the prisoner was indicted. That this evidence was competent is too clear for argument. The witness Mary McCready was a daughter of tire deceased; the witness Rudolph knew her well; she had eaten at his table for over two years, and each testified to certain pecularities of jaw and teeth, from which they had respectively formed the opinion above referred to. It was no answer to this to say that Rudolph was not a credible witness, and that Mary McCready was mistaken as to some of the teeth in the jaw. These were questions affecting the weight of the evidence and were entirely for the jury. Witnesses were called to impeach Rudolph; others were called to sustain him. The jury evidently believed him, and we cannot say they were wrong. It would be a serious thing to impute perjury to a witness for the Commonwealth in a capital case. A jury would hesitate to do so, while they might think he was mistaken, or that his opinion or belief of a fact was not founded upon a sufficient basis. It was argued that Mary McCready’s testimony was unreliable; that in point of fact she proved the jaw was not her mother’s, because she said her mother had no back teeth; only front teeth. What she did say was this : “ There was no double teeth on either side above that I can remember, but there was some roots of decayed teeth back on each side . . . only decayed teeth, roots like, back.” Now, the fact, which appears to be conceded, that the deceased had three back teeth, would not affect the competency of the testimony of the witness, and might not impair her credibility with the jury. It is certainly not a question for our consideration upon a writ of error.

The testimony referred to was not the only evidence of the corpus delicti, it had previously been shown that the deceased disappeared about the middle of February 1877 under circumstances which pointed strongly to her death by violence. She was a woman of about fifty years of age, in humble life, living with her son, a lad of about 12 years of age, in a small log cabin on the Kiskiminetas river in Westmoreland county. The little boy testified that he last saw his mother on the morning of her disappearance, at about 8 o’clock, that they ate breakfast together, and that, when he returned from school about 4 o’clock in the afternoon, his mother was not there, and that he never saw or heard of her since. Nothing about her house appears to have been disturbed; the fire was burning in the stove, but there were no indications of any preparation having been made for supper; everything about the house seemed to have been in order; all the furniture, carpet, bedding, chairs, and the wardrobe of the deceased, shawls, dresses and other articles of clothing were there. It further appeared that the deceased was not in the habit of going from home. The evidence showed that she was a home woman, and her sudden disappearance was a surprise and a mystery to all her neighbors, the more so when it became known that her humble home with its furniture and clothing were found in the precise condition as on that morning when her little son left for his school. Search was made for her, but it proved fruitless; inquiries were equally vain, nor Avas there anything shown which might allure her from her home or to raise a suspicion that she had committed suicide. Prior to her disappearance the prisoner on more than one occasion had threatened to take her life; he kneAV her and had several times visited her house, and it Avas proved that some time before her disappearance he had been in the neighborhood. On the 4th of April 1878 a human skull was found on the river shore near the house in Avhich Mrs. McCready lived. The hair attached to the skull was evidently that a woman; it was black and gray, corresponding to the hair shown to have belonged to her. The skull showed marks of violence; there were two Avounds, either of which Avould be sufficient to produce death. The jaw-bone found near the skull was identified by the witness Rudolph, and by Mary MeCready as the jaw-bone of the deceased, by reason of certain péeuliarities which they described.

Under these circumstances we cannot say it was error to admit the prisoner’s confession. While it is familiar law that a confession is not evidence in the absence of proof of the corpus delicti, yet I am not aware of any case which holds that the corpus delicti must first be proved beyond the possibility of doubt. It is a fact to be proved like any other fact in the cause, and be found by the jury upon competent evidence. The true rule in such cases is believed to be this: when the commonwealth has given sufficient evidence of the corpus delicti to entitle the case to go to the jury, it is competent to show a confession made by the prisoner connecting him with the crime. Under such eircmnstances the jury should first pass upon the sufficiency of the evidence of the corpics delicti. If it satisfies them beyond a reasonable doubt that the crime has been committed, then they are at liberty to give the confession such weight as it is entitled to, taking into view the circumstances surrounding it, and the extent to which it has been co2Toboi’ated. There is no rule of the criminal law which requires absolute certainty about this or any other question of fact. If it were otherwise,'it wo2ild be impossible to convict of any offence in any case. All the laAV requires is that the corpus delicti shall be proved as any other fact, that is, beyond a reasonable doubt, and that doubt is for the jury.

The identity of a human body, or even of a skeleton, may be proved by circumstances, as may any other fact: Hex v. Hindmarsh, 2 Leach’s Grown Cases 569; McCulloch v. The State, 48 Ind. 109. When all other means of identification fail, the hair and teeth form the chief means of recognition: Wharton’s Grim. Ev. § 804. In the case of Udderzook v. The Commonwealth, 26 P. F. S. 340, a mutilated body, whose, face was discolored and swollen, was found, having been apparently buried for some days; the witness who found it had never seen the person before. He was allowed to testify that the face resembled a photograph of a person alleged to be the one found : the question whether the witness could identify it was for the jury. So we say here, the question whether Hudolph, and Mary MeCready could identify the jaw found as that of the deceased was for the jury. It would have been bald error for the court below to have excluded their testimony. We are in no sense responsible for the view which the jury took of it, and it would be dangerous, feven if we had the power, to attempt to review their finding.

The confession of the prisoner as detailed by the witness Dixon was corroborated in a remarkable degree; not only was the skull found in the immediate vicinity of the place‘where the prisoner said he threw the body, but the wounds correspond precisely with those the prisoner said he inflicted. From all that appeared, the locality was unknown to the witness; he had never seen the skull, and the facts could only have been known to him from the statements of the prisoner.

This disposes of the 2d, 4th, and 5th assignments of error. The evidence referred to in the 1st assignment, even if incompetent, which is by no means clear, was immaterial, and could have done the prisoner no harm, while the evidence of the threats which is complained of in the 3d assignment was entirely competent. The 6th assignment is not sustained. While the testimony of Dr. McBriar, in regard to the hair, was not important, it was not error to admit it. The 10th and 11th assignments allege error in refusing a new trial, and do not require discussion. The remaining assignments refer to the charge of the learned judge and his answers to points. A careful examination of them fails to disclose any substantial error.

The judgment is affirmed, and it is ordered that the record be remitted to the Oyer and Terminer for the purpose of execution.