Commonwealth v. Force

Opinion by

Porter, J.,

The defendant was in the indictment charged with the larceny of a razor, the property of the county of Clinton. The commonwealth produced evidence which, if believed, established that the razor was the property of the county of Clinton, that it was kept in the county jail in the charge of the sheriff for the purpose of being used by the prisoners to shave themselves while in the jail; that the defendant knew these facts and in common with other inmates of the jail used the razor while a prisoner and, knowing that the razor was the property of the county, he clandestinely took it, when discharged from the prison, for the purpose of appropriating it to his own use. The defendant, it is true, contradicted the testimony of the officers of the jail who had testified that they had given him express notice that the razor was the property of the county, and asserted that he had bought the razor from another prisoner. The question of fact raised by this conflict of testimony was for the jury, to which the question of the intent with which the appellant took the razor must necessarily be submitted. The evidence was sufficient to warrant a finding that the defendant had taken the razor with felonious intent and it would have been error for the court to give the jury binding instructions in favor of the prisoner. The first and fourth specifications of error are dismissed.

The offers of the appellant to prove by his mother and aunt, the declarations which he had made to them, respectively, with regard to the razor, failed to state the time at which those declarations were made, and were properly excluded. The larceny, if there was a larceny, was complete when the defendant left the jail, and it is manifest from the offers that these declarations were made after that time. The defendant was charged with a criminal act and his only declarations which could become admissible in his favor were such as emanated instinctively from the act. Such declarations are admissible because they are so wrought up in the body of the act that they cannot be separated from it. In such cases the act is part of the declaration, and the declaration a part of the act: Wharton’s Criminal Evidence, sec. 266. Declarations made by the defendant in his own favor, unless part of the res gestse, or a confession offered by the prosecution, are not admissible for the defense. Declarations, to become a part of the res gestse, must have been made at the time of the act done, or be so connected with the main fact in issue as to constitute a part of the transaction: Grim v. Bonnell, 78 Pa. 152; Briggs v. Railroad & Coal Co., 206 Pa. 564; Sorenson v. Dundas, 42 Wis. 642; Conlan v. Grace, 36 Minn. 276; Bland v. State, 2 Ind. 608. The declarations which the defendant sought to introduce in evidence were in their nature self-serving, and the offers failed to disclose whether those declarations were made before or after the appellant actually knew that his theft had been discovered. The second and third specifications of error are overruled.

The judgment is affirmed and the record is remitted to the court below to the end that the sentence be carried into effect.