Brown v. Commonwealth

Chief Justice Agnew

delivered the opinion the court, May 10th 1875.

This case has been presented with much ability by the counsel of the prisoner, who have spared no labor or pains in performing their whole duty to a client whom they were appointed to defend, without hope of reward, other than that which attends a consciousness of duty well performed. The prisoner, miserable in severable senses, has been convicted, on a full and fair trial, of a most revolting crime; yet, owing to the mixed system of criminal proceedings in this state, and the want of skill, or of care, in the double office filled by a single clerk, we are perplexed with errors of procedure which under a single system of criminal jurisdiction, and more skill in the office, would not occur. We are relieved partially in the consideration of the assignments of error, by the full and complete record of the trial in the Oyer and Terminer, made out probably under the superintendence of the presiding judge. The rule of this court being to confine itself strictly to the record proper, and to affirm, if no error affecting the rights or-interests of the prisoner appear therein, we are saved from considering the formal errors assigned, excepting two; Cathcart v. Commonwealth, 1 Wright 108; Girts v. Commonwealth, 10 Harris 351.

The first is as to the amendment of the caption of the indictment which was entitled as in the Oyer and Terminer, but was amended after trial, conviction and sentence, so as to be entitled, as in the Court of Quarter Sessions. It would be a shame if this were not amendable, and we think there was sufficient before the court to amend by. No venire for grand jurors had issued out of the Court of Oyer and Terminer, and the indictment was, in fact, found in the Court of Quarter Sessions, from which the venire had ■issued, so that the mistake in the caption was obvious, and its amendment affected no real interest or right of the prisoner. The Court of Quarter Sessions having jurisdiction to find the indictment and send it into the Court of Oyer and Terminer for trial, the error in the caption was purely technical, and the amendment did the prisoner no harm.

The next assignment of error is more formidable, yet we think it fell within the power of amendment. The indictment found in the Quarter Sessions had not been formally certified into the Court of Oyer and Terminer at the time of trial. Afterwards, under a mine pro tune order, it was regularly certified in due form into the Court of Oyer and Terminer, and so appears on the record of that court. We think, under the authority of Dougherty v. The Commonwealth, 19 P. F. Smith 293,-the amendment mine pro tune was properly allowed. The prisoner was tried before judges having jurisdiction of his crime, by a jury duly selected and empannelled, on an indictment found by a grand jury having power to inquire of the offence, in a court having jurisdiction of the inquiry ; and the indictment being, in fact, sent into and in possession of the Oyer and Terminer, and sufficient and regular in charging the offence. Both courts are held by the same judges, and a single clerk fills the office of clerk in each. Why, then, should it be deemed a stretch of power to make the amendment, even after error brought ? Every substantial right of the prisoner was observed, and nothing but the formality of the certificate was wanting. The lodging of a writ of error is no test in such a case, but it is the power of the court, and the propriety of making the amendment. Where the court has the power, and exercises it properly, this court will not inquire into the state of the record before the return of the writ, but will look only at its condition, when returned in obedience to the writ. If, then, it appears to be regular, its previous condition will be disregarded. Our province is not to look for errors merely to reverse, but to look for merits in the cause of reversal; and when we find the court below has done no more than it could rightly do, and when what it did infringes no right or substantial interest of the prisoner, we ought not to send back for a re-trial a cause fully, fairly and justly determined. We think this assignment of error, when examined, is found to be without substantial merit. The day of mere technicality is past, and courts should look more at substantial justice than artificial nicety ; Commonwealth v. Keenan, 17 P. F. Smith 206; Girts v. Commonwealth, 10 Harris 351.

All the errors assigned to the charge relate to the burden of proof of insanity, the judge holding that the crime being admitted, the burthen lay upon the prisoner to establish his defence of insanity, or his want of moral power to resist the impulse to commit the crime, by satisfactory, or, at least, by preponderating evidence. The case of Ortwein v. The Commonwealth, 26 P. F. Smith 414, decided in January last by this court, was not known to the counsel at the time of trial. That case decides the question, and we shall only refer to it.

One error upon the defence of insanity is assigned to the following language of the court: “ If he (the prisoner) had power of mind enough to be conscious of what he was doing at the time, then he was responsible to the law for that act.” It is contended this language was incorrect, and was liable to mislead the jury, because the prisoner might be conscious of what act he was doing, and yet, in consequence of mental disability or disease, be incapable of refraining from its commission. But the charge has a plain English meaning, referring to the nature of the act, and when taken in connection with other parts of the charge, this portion is not susceptible of misconstruction. All the judge said referred plainly, not to the mere act, but to the prisoner’s consciousness of what he did as a crime. The phrase, “ conscious of what he was doing,” is idiomatic, and is understood to mean the real nature and true character of the act as 'a crime, and not to the mere act itself. As used by the judge in connection with what else he said, it was not contradictory or misleading. A memorable instance of this idiomatic use of the word what is found in the language of our Saviour on the cross, when he said, “ Father, forgive them; for they know not what they do !” Clearly,. the Jews knew well that they were crucifying Jesus, but their darkened minds were unconscious of the great crime they were committing.

We find no substantial error in the record for which the sentence of the court should be reversed. The judgment and sentence of the Court of Oyer and Terminer are therefore affirmed, and it is ordered that the record be remitted to the said court for execution of the sentence according to law.