Kilrow v. Commonwealth

Mr. Justice Woodward delivered the opinion of the court, May 5th 1879. On the night of the 5th of December 1876, the store of Roscoe T. Handrick at Lawsville Centre, in the county of Susquehanna, was broken open, and about $40 in money, $15 in postage stamps, and cigars of the value of $78, belonging to him were stolen. Kilrow, the defendant below, was indicted, tried and convicted on the charge that he had received the cigars, knowing them to be stolen goods. The only direct and distinct evidence of the defendant’s guilt was the testimony of John Preston, who swore that he, with Frederick Gill and William Chichester, had committed the larceny. Various errors have been assigned to the rulings of the court on questions of evidence, to the answers to the defendant’s points, and to portions of the general charge. The first assignment alleges error in the refusal of the offer to prove by Preston, on cross-examination, that while he was in Canada, he was told “ that if he remained there, he would get ten years for the offence; that if he came back they would let him off easier; and that he came back in part because of this inducemént.” While great latitude is allowed in the cross-examination of an accomplice, and the most searching questions are permitted, in order to test his veracity (Lee v. State, 21 Ohio 151), still this testimony was not important enough to warrant a reversal on the ground of its rejection. Preston’s position was defined with sufficient..clearness. He had been guilty of the original crime. He was in jail. And his motive [486] in appearing as a witness against the defendant, in order to secure leniency to himself to himself, was already obvious. There is more substance in the second error charged to have been committed in permitting William Chichester to testify that Kilrow had received stolen goods before the 5 th of December, “ to show guilty knowledge, purpose and practice.” Chichester’s statement on the stand was this : “ I know of Kilrow’s receiving stolen goods from what I heard defendant say before December 5th 1876. Was at his hotel; was talking with him about receiving of stolen goods ; we were talking about the securing the goods ; don’t know as I can tell what he did say ; he acknowledged that he took them.” This testimony was too vague to be safe. It contained no detail of time, place or circumstance, and in an issue in which the liberty of a citizen was at stake, it ought not to have been received. All the points raised by the third, fifth, sixth and seventh assignments are of the same general character. The third is a complaint that T. D. Estabrook was allowed to swear that his store was robbed in September 1876, and that he tracked the two thieves to Kilrow’s, the purpose being “ to show guilty knowledge, and to corroborate Preston’s statement that Kilrow knew there was going to be a search for stolen goods.” Standing alone, the admissibility of this witness would have been more than doubtful. Kilrow frankly admitted that the men had been at his house. But the real relation which Estabrook’s testimony bore to the cause is discovered by turning to the statements of Preston and Stephens in regard to the robbery of Stephens’s goods, and by considering the seventh error in the same connection. The Commonwealth was permitted to show by John H. Dusenberry “ that he informed Kilrow of the robbery of Estabrook’s store; that the goods had been traced to his house ; and that a search-warrant was or would be out,” for the purpose of “ corroborating John Preston as to the removal of the Stephens goods from Kilrow’s house.” Stephens was postmaster at Great Bend, and his office was broken open and robbed of some paper, pencils, stamps and money about the 1st of September 1876. Preston swore that the stolen paper was first deposited under a board-pile for a week or two; that it tvas then taken to Kilrow’s; that it was there when Estabrook’s store was robbed; that Kilrow said there was a search-warrant out, and the witness and Stack must remove the paper ; and that it was taken away by them about twelve o’clock at night. The fifth and sixth assignments are founded on the admission of witnesses to show a previous attempt in November 1876, to rob Handrick’s store, the expense of which Kilrow agreed to pay, and to show, in order to corroborate Preston, that Lewis Jewell let Preston and Gill have a horse to go to Snake creek, near the store, and that the horse was taken about half-past six, and brought back between ten and eleven o’clock on the night of the 29th of November. Preston swore that Kilrow [487] furnished the money to pay for the use of the horse. It was not asserted at the trial that the defendant ever received the goods of Estabrook, but the fact of the robbery of his store became material Avhen it was interwoven with the facts relating to the robbery of the Stephens property, and the deposit of that in the defendant’s house. The Commonwealth was bound to prove guilty knowledge to secure a conviction. It was said in Commonwealth v. Charles, 8 Leg. Gaz. 336, that on the trial of an indictment for receiving stolen goods, other ants of receiving, not so far removed in point of time or circumstances from the specific act. charged as to constitute a totally distinct transaction, may be given in evidence to establish the fact of guilty knowledge. The text-book rule is somewhat broader. In Whart. Crim. Law, sect. 1889, that rule is stated on the authority of the cases cited to be this: “ To show a guilty knowledge, other instances of receiving may be proved, even though they be the subject of other indictments antecedent to the receiving-in question.” Possibly this statement may be too general, and should perhaps be qualified by the application of the terms of the general rule of the criminal law, that “ evidence of some other felony or transaction than that on trial, committed upon or against a different person at a different time, in which the defendant participated, cannot be admitted until proof has been given establishing, or tending to establish, the offence with which he is charged, and .showing some connection between the different transactions, or such facts and circumstances as will warrant a presumption that the latter grew out of, and was, to some extent, induced by some circumstances connected with the former2 Puss, on Crimes 777. About the 1st of September 1876, Preston and Edward Stack robbed Stephens’s office, and took the goods to Kilrow’s house. Later in the same month, they robbed Estabrook’s store. When Kilrow ■was Avarned that a search-warrant was issued or threatened by Estabrook, he required Preston and Stack to remove Stephens’s paper. On the 29th of November, the first attempt to rob Handrick’s store Avas made by Preston and Gill with the knoAvledge of and at the expense of conveyance by Kilrow. The robbery was accomplished by Preston, Gill and Chichester on the 5th of December 1876. There was an interval of about three months between the first and the final crime. The evidence'tended to shoAV that KilroAV was personally implicated in three instances, and that he took immediate action upon information conveyed to him in relation to the fourth. Preston aided in the perpetration of each crime, and there Avas some proof that the intercourse between him and Kilrow was constant and confidential. It cannot be said that these transactions were so remote from each other as to be totally distinct. The rulings on this branch of the case were right. In the fourth error complaint is made of the rejection of the -sffer to prove by Estabrook that he had prosecuted Stack for break [488] ing into his store, and then entered a nolle prosequi. The testimony was inconsequent and irrelevant, and was properly rejected. At the close of the trial, the defendant proposed to prove by Lewis Frink that he purchased a Blue Jay cigar of Mr. Preston, the father of John Preston, in October 1877, to be followed by proof that the father was not in the cigar business, and by proof that the balance of the cigars of John Preston were kept with his father. The offer was rejected on the ground that it was not rebutting, and for this the eighth error was assigned. Courts of original jurisdiction have necessarily large discretion in regulating the order of the admission of evidence, and in permitting or refusing to permit witnesses to be called out of the ordinary course. But it seems that it was hardly a fair exercise of that discretion to refuse to receive this testimony on the ground on which the refusal was based. Of course the facts of a case are not presented in their due perspective in this court, as they are presented to the judge who tries it, Yet this offer was of proof that would appear to be vital and material. And besides, unless the facts are greatly misapprehended, it was technically admissible in the defendant’s rebutting case. The Commonwealth had called George Preston as a rebutting witness. He swore that he w'as in the cigar business in Binghamton ; that he never had any cigars with a bird on them; that, in his own words, “in 1876, fall, we sold cigars up to November;” and that he did not know that his father sold cigars in October. 1877. There may be some mistake in the record, and it is probable that the view of this court is mistaken, but from all they can gather from the offer, the testimony of Lewis Frink should have been received. After a consideration of the whole charge, including the answers to the defendant’s points, it is believed that the errors specified in the assignments, from the ninth to the sixteenth inclusive, are unfounded. The substance of the instruction to the jury was, that a conviction on the unsupported testimony of accomplices “ would be very unsafe and dangerous ;” and that they were to inquire -whether the Commonwealth had “satisfied them upon the point of the truthfulness of Preston’s statement,” and whether he was “so corroborated upon material parts of his testimony as to give credit to his whole statement.” The court said very properly that it was “not necessary that an accomplice should be corroborated upon every material part of his’testimony, foj if this were required, a conviction could be had without his testimony at all.” A single inquiry remains. The seventeenth and eighteenth assignments of error relate to the form of the indictment and the' judgment of the court on the defendant’s demurrer. The bill, as returned by the grand jury, charged the offences of receiving two thousand cigars belonging to Roscoe T. Handrick, and one thousand cigars belonging to Thaddeus D. Estabrook & Son, in a single [489] count. On the 17th of April 1878 the cause was reached. The defendant demurred to the bill on the ground of duplicity. The demurrer was overruled, and the defendant directed to plead. The jury were then sworn. On the following day, while the trial was in progress, the indictment was amended by striking out the words “ Thaddeus D. Estabrook & Son,” wherever they occurred, and inserting the name of R. T. Handrick in their place. The indictment was undoubtedly bad. When the objection to it was made, it could not be known that the bill would not have been found by the grand jury, if the receiving of Handrick’s goods only had been charged. Instead of joining in the demurrer, the district-attorney should have applied for an order to quash, or for leave to enter a nolle prosequi. The defect, however, is beyond any present reach. The rule seems to be that while duplicity in criminal cases may be objected to by special demurrer, or perhaps general demurrer, or be ground for an application to quash the indictment, yet the better view is that it cannot be made the subject of a motion in arrest of judgment, or of a writ of error; and it is cured by a verdict of guilty as to one of the offences, and not guilty as to the other, and by a nolle prosequi as to one member of the count: Wh. Or. Law, sec. 395. Numerous cases are cited in support of the doctrine in the text of the treatise. After a verdict of guilty at the trial of the defendant on the amended indictment, it would be hazardous to depart from-what is supposed to be the prevailing general rule. The judgment is reversed upon the writ of error, and it is ordered that the record be remitted, with the opinion of this court, setting forth the causes of reversal, to the Court of Quarter Sessions of the county of Susquehanna, for further proceeding. The certiorari is dismissed.