Buck v. Commonwealth

Mr. Justice PaxsON

delivered the opinion of the court, January 5th, 1885.

The fact that the juror, William F. Barton, had served as a juror in the case of the Commonwealth v. Gordon et al., No. 5, of September Sessions, 1888, was not a sufficient ground of challenge for cause. It was a different ease, and involved an entirely different state of facts. The only way the defendant below could get rid of the juror was to challenge him peremptorily.

The second assignment raises a more important question. It alleges that the court below erred in admitting in evidence against the defendant the plea of nolo contendere which bad been entered by Gordon and Geary. The latter were charged in tbe same indictment as principals in tbe robbery; the defendant Buck being charged as accessory before and after the fact. Gordon and Geary, the principals, had, as before stated, pleaded nolo contendere, but had not been sentenced; and the trial proceeded as to Buck as accessory, upon the plea of not guilty. The Commonwealth then offered the plea of nolo contendere in evidence as proof of tbe guilt of the principals. It was objected to as incompetent and irrelevant to affect the defendant Buck, now on trial. It was clearly incompetent to show tbe participation of Buck in the offence. Was it competent to show the guilt of the principals; to prove that the robbery bad been committed to which it was charged Buck was accessory?

The plea of nolo contendere is a mild form of pleading guilty. It is seldom used in this state, though in general practice in some of the New England states. “ It has the same effect as a plea of guilty so far as concerns the proceedings upon the indictment, and a defendant who is sentenced upon such a plea to pay a fine is convicted of the offence for which lie was indicted: ” Wharton’s American Criminal Law, § 538. The advantage, however, which may attend this plea is, that when accompanied by a protestation of tbe defendant’s innocence it will not conclude him in a civil action from contesting the facts charged in the indictment: Com. v. Horton, 9 Pick. 206. And in Massachusetts, under statute of 1855, c. 215, § 35, a defendant in a prosecution under that statute cannot be adjudged guilty on a plea of nolo contendere unless it appears by tbe record tliat tlie plea was received with the consent of the prosecutor: Com. v. Adams, 6 Gray 359.

Since the Act of 1860 it is no longer necessary to convict tbe principals before the accessory can be tried, yet it is still requisite in some way to prove that the principals are guilty before the accessory can be convicted. No man can be accessory to a crime which has never been committed. The authorities show that the guilt of the principal felon may be proved by the record of liis conviction, or by evidence aliunde: 2 Starkie oil Evidence 9. Yet even the record of the conviction is only prima facie evidence. As to the accessory it is res inter alios acta: Foster, 365; Smith’s Case, 1 Leach 323; Prosser’s Case, mentioned in note to Smith’s Case, 1 Id. 324; Rex v. Blick, 4 C. & P. 378; Rex v. McDaniel, 19 State Trials 806 ; Arch. Crim. Pleading and Practice. In Cook v. Field, 3 Esp. R. 134, it was said by Bbab.cb.OFT, J., and assented to by Lord KeNYON, that where the principal has been convicted, it is nevertheless on the trial of the accessory competent to the defendant to prove the principal innocent. And where two persons had been indicted together, one for stealing and the other for receiving, and the principal pleaded guilty, Wood, B., refused to allow the plea of guilty to establish the fact of the stealing by the principal against the receiver: 10 S. & M. 192. See also State v. Duncan, 6 Iredell, 98; State v. Newport, 4 Harrington 567.

That a confession by the principal is not admissible upon the trial of the accessory to prove the guilt of the principal, is settled law. What more is the plea of nolo contendere than a confession ? Had judgment been entered upon the plea the record would have been competent evidence of the conviction. But there was no judgment; only a plea which was at best but a qualified admission of guilt, and which might have been withdrawn the next day. We are of opinion that the plea was improperly received.

As the case must go back for re-trial it is necessary to rule the remaining questions.

Complaint is made in the third assignment that the court below admitted testimony to show that sand-bags and revolvers were found upon Gordon and Geary when they were arrested.

The record does not show when or where the arrest occurred, nor have we any of the surrounding circumstances. As a general rule, when a man is arrested charged with the commission of a crime, it is competent to show upon his trial what articles, if any, were found upon his person at the time of such arrest. I do not understand this general proposition to be disputed, but it was urged that however true this may be as to Gordon and Geary, the evidence was not competent as against the defendant. We are unable to see the distinction. It was a part of the Commonwealth’s case — a necessity of the situation — to prove the guilt of the principals before the accessory could be convicted. This has been already sufficiently discussed. The testimony in regard to the sand-bags and revolvers comes directly within the same principle. If admissible against Gordon and Geary had they been on trial, it was also competent against the defendant,, not indeed t,o show bis connection witb the offence, but to show the guilt of the principals. In this way it indirectly affected the defendant, as it tended to forge one of the links of the chain of evidence necessary to bis conviction.

As stated in the assignment of error, this testimony was offered “ for the purpose of corroborating the testimony of the prosecutor, F. Alpert.” We have not Alpert’s testimony before us, nor the answer of the witness Gilkinson, and therefore cannot say whether it amounted to corroboration, but as the evidence was clearly competent for the reason and for the purpose before stated, we cannot sustain this assignment.

The fourth and fifth assignments may be considered together. They involve a mode of practice which is not to be commended. This is what occurred: “ Defendant proposes to ask the witness, Alpert, on the stand, whether he had not been indicted and tried in this court for embezzlement, and this with a view to affect his credibility.” This offer was ruled out and a bill sealed for defendant. Defendant then proposed “ to ask the witness, Alpert, on the stand, questions affecting his (the witness’s) credibility, and the court, on demand of the Commonwealth, requires defendant to put in writing his questions — to which order and qualified refusal to admit the offered evidence defendant excepts, and here assigns it as error.”

The question asked the witness was an improper one. It was the right of the District Attorney to object and ask the court to rule it out. It was an attempt to prove an alleged fact by incompetent evidence. The proper mode of proving a conviction for embezzlement, or any other crime, is the production of the record. It is the highest and best evidence.

Nor do wo see any error in the action of the learned judge in requiring the questions intended to affect the credibility of the witness to be reduced to writing. The object of this was manifestly to keep improper questions from the jury. A witness may sometimes be badly damaged with the jury, as well as have his feelings outraged, by asking him improper questions when on the stand. Where this line of cross-examination occurs it is always proper for the judge to require the questions to be put in writing and handed up to him. Witnesses have rights which should be respected even in the Quarter Sessions and Oyer and Terminer.

The judgment is reversed, and it is now ordered that the record be remanded to the Court of Oyer and Terminer of Allegheny County, together with this opinion containing the , cause of such reversal, for further proceedings according to law.