Commonwealth v. Miller

Opinion by

Rice, P. J.,

The defendant was a school director of Washington township, and was indicted and convicted upon a charge of soliciting and receiving from Daniel S. Herring a bribe of $15.00 to influence his action upon the application of Herring for appointment as teacher.

A considerable part of the testimony adduced by the commonwealth has not been returned with the record, but it is conceded that Herring testified that the defendant demanded, and Herring promised to pay, the bribe at the adjourned meeting of the board, on June 25, 1904, at which Herring received the appointment. His testimony as to the bribe being demanded and promised was unequivocally denied by the defendant.

The school opened in September, 1904, and on October 15, following, an order was issued for $38.00, the first month’s salary, and the money was paid thereon by the treasurer to the defendant, to be delivered to Herring. On November 24, following, two orders were issued in Herring’s favor, one for $38.00, his salary for the preceding month, and one for $10.00, his expenses in attending teachers’ institute, and upon these orders the treasurer delivered to the defendant checks payable to Herring corresponding in amounts to the orders. In December the defendant gave Herring these two checks, and his own check for $23.00. Thus far the testimony as to the payment of Herring’s salary is in harmony. But Herring testified that these checks were all that he received, and that-the difference of $15.00 was retained by the defendant in pursuance of the agreement above referred to, while the defendant testified that at the time he delivered the three checks to Herring he also paid him $15.00 in cash.

This preliminary statement of the principal question's of fact leads up to a consideration of the questions raised by the third, fourth and fifth assignments of error. It appears that when the defendant delivered the checks to Herring, he also delivered to him what is called “ the teacher’s monthly report book.” A page of this book was prepared and set apart for each school month, the parts of this record or report material here being the blank receipt to be filled and signed by the teacher and the blank approval of the monthly report to be signed by the secretary of the board. The receipts of Herring for other months showed the payment of $38.00, but for the month.ending November 18, 1904, the approval, signed by the defendant as secretary of the board, reads: “Approval. — Filed, examined and approved the 31 day of Dec. 1904. J. A. Miller, Secretary.”

Immediately under this is the receipt which reads :

“ Received, the ................. day of ......... 190 , from the Secretary of............District, Order No............, of this date on. the Treasurer of the District for....................Dollars........cents, which, when paid, will be my salary in full for the time embraced in the above report.

X D. S. Herring, Teacher.

The question is as to the admissibility of these entries in the teacher’s report book, and of Herring’s explanatory testimony to the effect that the marks following the dollar mark in the receipt were a form of notation chosen by him to express the number twenty-three. In the determination of this question, it is to be borne in mind : first, that this receipt was for the second month of Herring’s service ; second, that he testifies it was signed by him directly after the three checks above referred to had been delivered to him by the defendant in payment of his salary for the first two months; third, that the approval signed by the defendant bears a later date. If Herring told the truth as to the time when he signed the receipt; to be more explicit, if the receipt in its present form was before the defendant, when he signed the approval, it is not to be treated as a mere private memorandum of Herring, which only could be referred to by him to refresh his recollection, but was itself evidence. Taken in connection with the other entries in the book, it laid ground for argument to the jury that if the defendant had turned over to Herring his full pay for the two months, it was not likely that he would have signed the approval without objecting to or questioning the peculiar form— $ " A —iu which Herring, with apparent design, had chosen to indicate the amount received. True, he may not have been affected with notice that the marks meant twenty-three, but the jury were warranted in finding that notice was brought home to him that Herring had not receipted for $38.00, but had receipted in a form which required explanation. His conduct in view of such notice was a relevant and significant fact; it invited the very kind of explanation that was given. We conclude, therefore, that the receipt was admissible in evidence, and, being so, the case presents no exception to the general rule that parol evidence is admissible to explain receipts: Sheaffer v. Sensenig, 182 Pa. 634; Wingate v. Mechanics Bank, 10 Pa. 104.

The question of the admissibility of the rebutting testimony embraced in the sixth, seventh and eighth assignments of error depends for its correct determination upon the testimony given by D. S. Herring when under cross-examination by the defendant’s counsel. Unfortunately, however, the latter testimony has not been returned with the record. The reason assigned for this omission is that it was taken before the official shorthand reporter was called in, and the notes of it, which were taken by the trial judge, were not filed and have been lost or mislaid. But this does not affect the applicability of the general rule, that “ the onus is on the plaintiff in error to make out his assignment affirmatively, and he must furnish in the record and on his paper-book all that is necessary for that purpose : ” Aiken v. Stewart, 63 Pa. 30. If without fault of the appellee evidence given on the trial, which is alleged to be essential to a correct determination of an assignment of error, is not brought up with the record, the appellant, surely, has no right to object to a disposition of the assignment upon the facts recited by the judge in the ruling excepted to.

In discussing the assignment it will be well to keep in mind certain dates. The bribe was alleged to have been solicited and promised in June, 1904. Herring taught during the school year beginning in September, 1904. This prosecution was begun in October, 1905, and the case was tried in the following month. Herring, as we have seen, was the principal witness for.the commonwealth. It is conceded that upon his cross-examination the facts were elicited, (1) that Brown the prosecutor, and the father-in-law of Herring, was defeated for school director in February, 1905, and blamed the defendant for his defeat; (2) that at the election of teachers in the ensuing summer Herring was dropped and lost his school. The only relevancy these facts had was to show motive for the' prosecution and the witnesses’ bias, and that the defendant’s counsel elicited and relied upon them for that purpose is shown by the bill of exceptions. In such a direct conflict of testimony as that between Herring and the defendant as to the principal facts, evidence of this kind, whether drawn out upon the cross-examination of the witness or introduced by the opposite party, is not only relevant, but, if not rebutted nor explained, may have great weight with the jury. The testimony admitted in rebuttal was to the effect that about the time the bribe is alleged to have been paid, and before the imputed motive could have existed, the witness narrated the facts to others substantially as he narrated them upon the witness stand. The leading decisions of our Supreme Court bearing upon the question of the admissibility in evidence of such previous statements of a witness are: Henderson v. Jones, 10 S. & R. 322; Craig v. Craig, 5 Rawle, 91; Good v. Good, 7 Watts, 195; McKee v. Jones, 6 Pa. 425 ; Bricher v. Lightner, 40 Pa. 199; Zell v. Commonwealth, 94 Pa. 258 ; Hester v. Commonwealth, 85 Pa. 139; Clever v. Hilberry, 116 Pa. 431; Crooks v. Bunn, 136 Pa. 368 ; Thomas v. Miller, 165 Pa. 216. We reviewed these cases at length in Commonwealth v. Kay, 14 Pa. Superior Ct. 376, and reached the conclusion that a mere conflict of testimony is not, alone, a sufficient reason for the admission of such proof, and in the later case of Commonwealth v. Brown, 23 Pa. Superior Ct. 470, where the subject was re-examined, we added, that the general rule as to hearsay testimony ought not to be relaxed even though the conflict be such as is explainable only upon the theory that the testimony of one of the opposing witnesses is a pure fabrication. But in the latter case we said: While it is not in general permissible to support a ,,witness' “ by evidence that he had made former statements similar to his testimony, yet there are well-recognized exceptions to the general rule. The authorities generally agree, that in contradiction of evidence tending to show that the witness’s account of the transaction was a fabrication of recent date, it may be shown that he gave a similar account before its effect and operation could be seen, or before there could have been any inducement to fabricate; also that where he is charged directly or inferentially with testifying under the influence of some motive prompting him to make a false statement, it may be shown that he made a similar statement when the imputed motive did not exist, or when motives of interest would have induced him to make a different statement of facts.” The learned trial judge with better knowledge than we can have of the course pursued in the cross-examination of Herring, and of the use sought to be made of the facts elicited, held that the case was brought within the above-stated principles. We are not convinced that this was an erroneous conclusion; therefore these assignments are overruled.

The testimony of- Herring quoted in the first and second assignments was of the same nature, and for the reasons already stated was admissible in connection with the testimony of the witnesses to whom he narrated the facts. If there was technical error in not excluding it until the defendant had closed his case, we cannot see that it was an error which prejudiced the defendant in any way.

The eleventh and twelfth assignments of error relate to the cross-examination of the defendant in regard to an offer made by him to one Ferrebee to give to Ferrebee for a consideration the position subsequently given to Herring. As was said by Justice Williams in Commonwealth v. Wilson, 186 Pa. 1, “ upon a trial for a specific crime, the evidence should bear some relation to the question of the defendant’s connection with the particular crime charged.” It has not been made clear to us that the questions put to the defendant related to any matter concerning which he had testified in chief, nor is it clear that proof of such an offer as was referred to in the questions would have been admissible for any of the exceptional purposes for which proof of independent crimes is admitted. But it is not necessary to express a deckled opinion upon that question because the defendant unequivocally and emphatically denied having made any such offer as was referred to. The effect of the commonwealth’s failure to elicit the incriminating evidence from the defendant and to adduce any such evidence from other witnesses was quite as likely to be prejudicial to the commonwealth as otherwise. It is not sufficient, as a general rule, to show that an improper question, either in form or substance, has' been put to a witness ; it must appear that an answer was received which tended to injure the case of the appellant: Commonwealth v. Craig, 19 Pa. Superior Ct. 81. We find no reversible error in either of these assignments.

The answer to the defendant’s point as to the effect of “ character ” evidence was the same as that given to a similar point in the other case against the defendant in which we herewith file an opinion. Therefore the thirteenth assignment of error is overruled.

The ninth and tenth assignments of error do not require discussion.

All the assignments of error are overruled, the judgment is affirmed and the record is remitted to the court below with direction that the sentence be fully carried into effect.