Commonwealth v. Jermyn

I am obliged to dissent from the opinion of the court.

Miller, the slot machine proprietor, who was the chief witness for the Commonwealth, gave no evidence directly connecting Jermyn with the conspiracy charged in the indictment. He testified that on the only occasion on which he approached Jermyn on the subject the latter told him "to get to hell out of here." He testified, however, as to declarations of Pride and Friend which were most damaging to Jermyn. These declarations were not admissible as evidence against Jermyn unless the jury first found, from the other evidence in the case, that he was a co-conspirator with Friend and Pride. A conspiracy cannot be proved in the first instance by the declarations of an alleged co-conspirator. "Such declarations are not admissible until the parties affected thereby have been shown to be connected in some degree with the conspiracy charged": Com. v. Zuern, 16 Pa. Super. 588, 599; Com. v. Bingle, 62 Pa. Super. 105, 108.

Miller's evidence of his conversations with Pride and Friend was admissible for all purposes against Friend; the only question affecting the latter was whether the jury believed the testimony. But as to Jermyn the case was different. There was no evidence directly connecting him with the conspiracy. If he was a conspirator it had to be inferred from circumstances, and Miller's testimony of Pride's and Friend's declarations linking up Jermyn as a co-conspirator was not evidence for the purpose of proving him to be a conspirator, unless the conspiracy was established in the minds of the jury by evidence other than these hearsay declarations.

The order of proof was in the control of the court, but having admitted Miller's testimony of these declarations at a time when there was no competent evidence connecting Jermyn with the conspiracy, the court, in my opinion, should have charged the jury not to consider Miller's testimony of the declarations of Pride and Friend in passing on the guilt or innocence of Jermyn, unless they believed the other evidence in the case, wholly apart from Miller's, connecting Jermyn with the conspiracy.

I regard the omission, in the circumstances here present, as fundamental error. If it is error for a court to fail to warn or caution a jury not to convict on the uncorroborated evidence of an accomplice, (Com. v. Haines, 257 Pa. 289, 297; Cox v. Com.,125 Pa. 94, 103; Watson v. Com., 95 Pa. 418, 424; Com. v. Craig, 19 Pa. Super. 81, 94), it should likewise be for failure to instruct a jury not to consider as evidence against one defendant hearsay declarations of an alleged co-conspirator, until they are first satisfied from the other evidence in the case that he was a conspirator with the persons making the declarations.

The appellant, Jermyn, could not move to strike out the evidence for it was admissible, if the jury were satisfied from the evidence, apart from the declarations, that he was a conspirator with Pride and Friend; but he was entitled, especially in view of the admission of the declarations in evidence before there was any proof of his connection with the conspiracy, to have the jury instructed and warned to disregard the evidence of these declarations as to him, unless they were convinced of the truth of the remaining evidence attempting to link him up with the conspiracy. I feel that in this case the jury were allowed to find Jermyn's guilt as a conspirator from the hearsay declarations of his alleged co-conspirators.

I would sustain the 35th assignment of error and grant a new trial.