McLain v. Commonwealth

Mr. Justice Mekour delivered the opinion of the court, January 3d 1882. All the specifications of error argued, were properly presented under a few heads, and will now be so considered. The first is to the rejection of the testimony given by James Cox [97] before the coroner on the inquest. Oox was shown to be ill, and although convalescent at the time of the trial, yet unable to attend court. It is undoubted law that the testimony of a deceased witness given on a former trial between the same parties in the same issue, and duly proved, is admissible in a civil case. The authorities are not in entire harmony as to the application of the same rule in criminal cases. The preponderance of authority is that the rule does so apply, if the witness be dead: 1 American Crim. Law, § 667; 1 Whart. Law of Ev. § 177; Commonwealth v. Richards, 18 Pick. 434; Crary v. Sprague, 12 Wend. 41; Brown v. Commonwealth, 23 P. F. Smith 321. The witness Cox was not dead, nor was his sickness of a character imposing permanent disability. On the contrary, he was recovering from typhoid fever, so there was reason to suppose ho would be able to attend on some future day to which the trial may have been postponed. In civil cases, the recognized rule in this state, is to admit the testimony of a witness, unable to attend court, without regard to the permanency of his sickness ; yet we are not aware that the precise point has ever been decided by this court, in a criminal case. Under the rule declared in Harrison v. Blades, 3 Camp. 458; Jones v. Brewer, 4 Taun. 47, and Whart. Law of Evi. § 179, the evidence of a witness temporarily ill would be excluded in a criminal case. It however is not necessary to invoke that distinction in the present case. The action of the court rests on firmer ground. The hearing before the coroner was not between the 'parties to the issue in which the evidence was offered. No issue was there formed between the Commonwealth and the plaintiff in error. An inquiry there takes a broad range. It is not to ascertain the guilt of any particular person, but of every person that the evidence might implicate. No technical rules. restrict or control the admission of evidence. No cross-examination of witnesses is Lad. The coroner’s discretion marks the line where the evidence of a witness shall begin, and where it. shall end. It was contended that the evidence should have been received under the British statutes, more especially under the 1 ,& 2 Phil. & Mary, and the construction given thereto.. Chapter 13, § 5, of that statute, does require the coroner in inquisitions finding murder or manslaughter, to put in writing the effect of the material evidence given to the jury before him, and to certify and return the same with the inquisition, thus making it a part of his judicial action. When so taken, certified and returned, and the witness be dead, the courts in England have held the evidence admissible. Our attention has not been called to any Pennsylvania authority giving such con [98] struction to the statute. If, however, it were otherwise, the rule could not apply to this case, as the witness is still living. Other reasons exist for its exclusion. The testimony offered was not taken down by the coroner nor under his direction or supervision. Nor was it certified or returned by him with the inquisition. It was taken by a short-hand writer at the instance of some person not clearly disclosed by the evidence, and, as testified by the writer, for “ whomever it might concern.” It is further urged that the evidence should have been admitted under the ruling on the trial of Lord Morely, reported in Kelynge 53, 18 Chas. II. It was then resolved, ‘ that in case any of the witnesses which were examined before the coroner were dead or unable to travel, and oath made thereof, that then the examination of such witnesses might be read, the coroner first making oath that such examinations are the same which he took upon oath without any addition or alteration whatsoever.” This was the case in which Lord Morely and Bromwich wore indicted for the murder of Hastings. The former was tried by his peers before the Lord High Steward; the latter before the Court of King’s Bench; Levinz’s Reports, part 1, page 180, and again reported in 2 Keble, 19. In each case it is shown that the witnesses were dead when their testimony was offered. The admission of the evidence did not rest on any temporary disability, but on their death, and the sworn testimony of the coroner as to the correct taking of the evidence offered. As the testimony of Cox was in no manner proved by the coroner the present case does not come within those authorities under the broadest rule there indicated. Nor does the case of Brown v. Commonwealth make the evidence admissible. There the testimony of the witness was taken before a justice of the peace on a hearing wherein Brown was charged with the crime. He was present and represented by counsel. Full opportunity was thus given for cross-examination of the witness. The accused had “ met him face to face,” and the witness was dead when his evidence was offered on the trial. The evidence given by Cox was properly rejected. Gross was the only witness who testified to having seen the accused commit the murder, although there was much other evidence tending to corroborate him. If Gross was believed, the guilt of the accused was established. It was therefore of vital importance to the accused to cast discredit on the testimony of this witness. Evidence was given which, if believed, was very proper for the jury to consider in determining the credit to be given to Gross. It consisted, in part, in showing that this testimony was contrary to his previous statements; that the number of cuts found on the head of the murdered boy proved the infliction of more blows than Gross swore were struck; that [99] other evidence indicated lie could not have been killed in tho stable at the time and in tho manner testified to by Gross. All tho substantial contradictions to the evidence of Gross were fully, distinctly and fairly called to the attention of the jury, and they were well instructed in regard to believing that only which carried conviction to their minds. It was further urged that no adequate motive was shown to induce the accused to commit the crime charged. The court well said the Commonwealth was not bound to establish an adequate motive for the alleged crime, and declared, in the words of this court, “ the fact of murder being established the inability to discover the motive does not disprove the crime.” Tho fact that Hunter was murdered was unquestionably proved. The only contention was whether the accused committed the act. He gave evidence of a previous good reputation. The instructions of the court gave due weight to this evidence. It said, “ evidence of good character, when proven to exist, is not a mere make-weight thrown in to assist in the production of a result that would happen at all events, but it is positive evidence. A. case may be so made out that no previous character, however good, can make it doubtful; but there may be cases in which evidence given against a person without character would amount to certainty, in which a high character would produce a reasonable doubt, or indeed, actually outweigh evidence which might otherwise appear conclusive.” The learned judge then submitted for “their consideration” tho language of Chief Justice Shaw in the case of Professor Webster: “'Where it is a question of great and atrocious criminality, the commission of the act is so unusual, so out of the ordinary course of things, and beyond common experience, it is so manifest that the offense, if perpetrated, must have been influenced by motives not frequently operating on the human mind; that evidence of character, and of a man’s habitual conduct under common circumstances, must be considered far inferior to what it is in the instance of accusations of a lower grade.” After reading this, he added that such evidence “ may of itself, by the creation in your minds of a reasonable doubt of the existence or truthfulness of the criminating evidence, cause you to acquit the defendant.” We are not prepared to dissent from the doctrine declared by Chief Justice Shaw ; but qualified as it was by the court below the accused has no just cause of complaint. Error is alleged in regard to the manner in which the court submitted the evidence proving the finding of human blood. Gross testified that tho murder was committed with a shovel. Stains or discolored spots were found on the shovel and also on the clothing of the accused. These were subjected to chemical analysis and microscopic examination by different experts. [100] Some succeeded in finding well-defined blood corpuscles, indicating human blood, other's failed to find them. It was contended on the part of the accused that human blood could not be distinguished from that of many animals by any chemical test or scientific appliance. In answer to this, the court substantially said, if scientific research gave no such aid in the discovery of a heinous crime, it was deplorable. Nevertheless he charged that if the jury was satisfied of its truth, they might lawfully convict, upon proof of the existence of human blood, by the testimony of unlearned observers. The correctness of this view is fully sustained by Gaines v. Commonwealth, 14 Wright 319. That was a case of homicide, and the court below said to the jury, “We cannot instruct you that because no analysis had been made of the substance which the witnesses supposed to be blood, no chemical test, no microscopic examination, that you are therefore to reject the evidence as insufficient to show that it was blood. We feel it to be our duty to refer the question to you, and leave it for you to say whether the Commonwealth has satisfied you beyond a reasonable doubt that the spots seen by the witnesses were blood.” The correctness of that ruling was affirmed by this court. The evidence on each side was sufficiently brought to the attention of the jury, and- the facts fairly commented upon. There was no error in presenting some of them in the form of questions. It was well calculated to present to their consideration the precise points in controversy. The facts were stated in a clear and impartial manner. The evidence of the experts and the positive and negative testimony of each was fairly contrasted. The contradictions and improbabilities of much of Gross’s evidence were fully stated. It is not necessary to refer to the various assignments more in detail. We have examined all of them. The court very carefully and correctly instructed the jury that they were the judges of tire credibility of witnesses, and as to the weight they should give to the opinion of the court on questions of law. The case was well tried and with due regard to the rights of the accused. We find no error in the record. Judgment affirmed, and it is ordered that the record be returned for due execution of the sentence.