Garboctowski v. State

Harrington, J., delivering the opinion of the court: The first question to consider is whether this court can review on a writ of error the refusal of the court below at the close of the State’s primary case to direct a verdict for Garboctowski, the plaintiff in error. Section 12 of Article 4 of the Constitution of 1897 provides that the Supreme Court shall have jurisdiction to issue writs of error to the Court of General Sessions in certain cases “and to determine finally all matters in error in the judgments and proceedings of said * * * Court of General Sessions in such cases,” etc. The same provision appeared in the Constitution of 1831 and precisely the same language is also used in both the Constitutions of 1831 and 1897 with respect to writs of error from the Superior Court. At common law, in both civil and criminal cases, a writ of error could never be obtained before judgment; it was granted only to review a final determination of a case. 60 Am. Dec. 427, note; 12 Cyc. 798; 1 Chitty, Crim. Law, 747; 17 C. J., 26; 3 C. J., 314, 432; 2 R. C. L., § 30, p. 46, and Section 21, p. 39; Union Church v. Sanders, 1 Houst. 100, 114, 63 Am. Dec. 187; Woolley’s Del. Prac., § 856. This rule was intended to compel the presentation of the whole case in one appeal and thereby to prevent the delay that would necessarily arise if several appeals were permitted in the same case. 2 R. C. L., § 25, p. 42; Cooper v. Wyman, 122 N. C. 784, 29 S. E. 947, 65 Am. St. Rep. 731. In construing the Constitution of 1897 and the similar provisions of the prior Constitution of 1831, the same rule has been' applied, and it has been universally held that a writ of error will only lie to review “judgments and decisions in any proceedings * * * of a final character.” Union Church v. Sanders, 1 Houst. 100, 115; Brumley v. J. & M. Paper Co., 3 Boyce 544, 90 Atl. 83; Ridings v. McMenamin, 1 Penn. 15, 39 Atl. 463, and Hession v. Wilmington, 2 Marv. 1, 3, 42 Atl. 422; Woolley Del. Prac, §§ 856, 858. See, also, Montello Brick Co. v. Pullman Palace Car Co., 4 Penn. 90, 54 Atl. 687. — 394 — In Brumley v. J. & M. Paper Co., supra, the court, after referring to the Sanders Case, said, “Tested by the ruling made in that case, we are constrained to hold that the refusal to quash the return to the alternative writ was a proceeding of a final character.” In Ridings v. McMenamin, supra, there was a refusal to grant a motion for judgment, notwithstanding defendant’s affidavit of defense. In refusing to note an exception to this ruling, the court held: ‘ ‘ That no exception would lie, as it was not a final judgment and no writ of error could be taken." And in Hession v. Wilmington, supra, the court said: “Upon careful investigation of the record now before us, we fail to find any judgment or decision of a final character in the cause in the court below, within the meaning and operation of said constitutional provision, and, therefore, the writ of error must be dismissed.” And in Montello Brick Co. v. Pullman Palace Car Co., supra, the court refused to note an exception to its order permitting a special appearance by the defendant for the purpose of filing an affidavit of defense. As is indicated by the above cases, questions often arise as to what judgments or proceedings are within the “final” class, but it has been long since settled in this state by a decision of the court of last resort, that no writ of error will lie either to the granting or refusing of a nonsuit. May v. Curry & Davis, 4 Harr. 265; Woolley's Del. Prac., §§ 678 and 858. While there is some difference in opinion in other states as to whether the granting of a nonsuit is a judgment of such a final character that a writ of error will lie, we are bound by the rule laid down by our own court. That being true, it necessarily follows that the same rule must apply in a criminal case in a motion of this character; and there is abundant authority for this position. 2 R. C. L. 45 and 46; Matter of Ford, 160 Cal. 334, 116 Pac. 757, 35 L. R. A. (N. S.) 882, Ann. Cas. 1912D, 1267. This particular question has been several times considered by the Court of General Sessions of — 395 — this state. In State v. Lynn 3 Penn. 316, 328, 51 Atl. 878, under precisely the same circumstances, the trial court declined to note an exception to its refusal to direct a verdict for the defendant. While the reason for the court’s ruling was not given, it must have been because it did not consider that its decision on the defendant’s motion could be reviewed by a writ of error. In State v. Sienkiewiez, 4 Penn. 59, 65, 55 Atl. 346, while the trial court noted an exception, it expressly stated that the effect of the exception was doubtful. State v. Foster, 1 Penn. 289, 292, 40 Atl. 939, was cited in this case, and it appears from the report of that case that an exception was noted without comment. While the case was heard in this court on writ of error, it appears (Foster v. State, 2 Penn. 111, 43 Atl. 265) that the same question was again raised by a prayer for binding instructions when the case was finally submitted to the jury. It, therefore, affords no support for the contention of the plaintff in error. In State v. Jones, 4 Penn. 109, 114, 53 Atl. 858, there was a motion to strike out two counts in the indictment. The court refused the motion, whereupon the attorney for the defendant asked that an exception be noted. The court expressly stated, however, that no exception would lie as it was not a “final judgment.” Our conclusion, therefore, is that the refusal of the trial cotut to direct a verdict for the defendant in this case was not a judgment or proceeding of such a final character that it can be reviewed on a writ of error in this court. Practically the same question could have been raised by a prayer for binding instructions when the case was finally submitted to the jury, and by noting an exception in case of the court’s refusal to charge as requested. That would have been the proper method of procedure, for the protection of any possible rights of the plaintiff in error in this case. State v. Jones, supra. Such is the practice when the court refuses to grant a motion for a nonsuit in a civil case. Woolley’s Del. Prac., §§ 679 and 858. Perhaps it would not be improper to state, however, that if this court could have reviewed the evidence with respect to — 396 — this assignment of error, it would have held that the state proved a prima facie case and that the question of the guilt or innocence of the prisoner was, therefore, properly submitted to the jury. The state contends that no exception was taken to the ruling of the court below on the admission of the testimony of Joseph F. Kempski and Captain Robert J. Benson, with respect to alleged admissions of the plaintiff in error that he had been selling liquor and that such ruling cannot, therefore, be reviewed in this court. The record is as stated; but it also shows that practically the same question was asked Garboctowski on cross-examination, and that an objection was made and overruled, and that an exception was noted. As a general rule objections, whether in connection with the admission of evidence or other matters, must be repeated at subsequent stages of the trial when this is necessary to call the court’s attention to the facts and grounds of such objection in connection with the particular matters complained of; but this rule does not apply when the ruling of the court on a previous objection clearly covers and authorizes the subsequent proceedings so that further objection would be mere idle form. Mine, etc., Supply Co. v. Parke, 107 Fed. 881, 47 C. C. A. 34; Wilson v. Monticello, 85 Ind. 10; Jones on Ed., vol. 5, pp. 376, 377, 378; 8 Pl. & Pr. 229; 2 R. C. L. § 67, p. 91; 3 C. J. 749, 756. This principle is applicable to this case. The question asked Garboctowski was for the plainly apparent purpose of contradicting him. The court, therefore, had notice of such purpose when it overruled the objection of the attorney for the plaintiff in error, and noted an exception to its ruling. The question brought a negative and, therefore, harmless answer, and clearly could not constitute reversible error; the assignment of error based on it was, consequently, not strongly pressed at the hearing. Whether, however, the question itself was objectionable will be considered hereafter. The subsequent questions put to Joseph F. Kempski and Robert J. Benson on rebuttal, however, brought the answer that — 397 — plaintiff in error stated to them on the day of his arrest that he had been only selling liquor for about two weeks. One of the questions before us is whether this evidence was relevant. In the court below it was admitted on the ground that it tended to show guilty knowledge with respect to the liquor found in the home of the plaintiff in error. This reason is not pressed in this court, but the question is whether the testimony of Kempski and Benson was admissible on any ground. This question is not free from difficulty. At common law, the husband was the legal head of the family, with the general right to regulate, manage and control the household and the use of the family home. 30 C. J. 510; 30 R. C. L. p. 984, § 3; State v. McDaniel, Houst. Cr. Cas. 506; State v. Lockwood, 1 Penn. 76, 39 Atl. 589. This rule is in no way affected by the Married Woman’s Act (Rev. Code 1915, § 3047 et seq.), nor is it affected by the fact that the wife was the legal or equitable owner of the house occupied by the family. State v. Lockwood, supra; State v. McDaniel, supra. The quantity of liquor found in the kitchen of the home of Garboctowski is not disputed, but whether it was in his possession is disputed. He contends that proof tending to show that he was guilty of selling liquor is a purely collateral fact having no bearing on his guilt of the offense for which he was indicted. In State v. Brown, 3 Boyce 499, 505, 85 Atl. 797, 799, the court said: ‘‘It is undoubtedly the general rule that the prosecution is not allowed to prove the commission of another distinct offense, though of the same kind with that charged, for the purpose of proving the latter, or for the purpose of rendering it more probable in the minds of the jury that the defendant committed the offense for which he is on trial." That there are many exceptions to the general rule and that evidence showing the commission of other offenses is often- relevont, and, therefore, admissible on some grounds, is also well settled. Wharton on Cr. Ev. § 3; State v. Brown, supra; People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193. — 398 — Where facts constituting one offense are also connected with and form a constituent part of another offense and are, therefore, relevant, they are usually admissible in evidence. _ This is one of the exceptions to the general rule stated above; while it is sometimes put on the ground that it constitutes a part of the res gastae, whether that ground is the proper one need not be considered by us. Wharton, Cr. Ev., §§ 31, 33; Wigmore on Ev., §§ 218, 305, 306; Chamberlayne’s Handbook on Ev. § 1020; People v. Furlong, 140 App. Div. 179, 125 N. Y. Supp. 164, 168; State v. Gorman, 58 N. H. 77; State v. Lapage, 57 N. H. 245, 288, 24 Am. Rep. 69; Chamberlayne on Ev., § 3252. The question for us to determine is whether the evidence of Kempski and Benson is within the above exception. That any fact which sustains or impeaches a pertinent hypothesis is relevant, is clear. Wharton’s Cr. Ev., § 24.1 It is true that the admission of the plaintff in error that he had been selling liquor “out there” for two weeks would not necessarily show that he had possession of the particular liquor found in his home on October 7th. The test of the admissibility of evidence, however, is not that it must show guilt; if it may reasonably tend to show guilt under the circumstances of the particular case it is ordinarily relevant and admissible unless some positive rule of evidence excludes it. Jones on Evidence, § 173. Such admission was made on October 7th, the very day the liquor described in the indictment was found, and in response to a question put by a police officer a few hours after the arrest of Garboctowski on the charge of having illegally' in his possession in his home more" than one quart of whisky. It referred to his acts for about two weeks immediately prior to that time; and the only reasonable inference is that it referred to acts in his own home or in the store located therein. Such statement must also be considered in connection with the further admission that he had in his possession, also apparently in his home, on October 7th, about one pint of spirituous liquor; and that whisky is a spirituous liquor, is admitted. — 399 — Theques tian before the trial court was whether Garboctowski had poss ession of the whisky found in the kitchen of his home on that day. Under an indictment for the sale of whisky, evidence that the defendant had such a large quantity of whisky in his possession about the time of the alleged sale, as to be inconsistent with the theory that it was intended for his personal use, is admissible. State v. Ryan, 1 Boyce 223, 75 Atl. 869, 23 Cyc. 250. The question presented here, however, is in a sense the converse of that proposition. It is true that Garboctowski’s admission was that he was selling “liquor,” but that word in common usage means intoxicating liquor. State v. Gulczynski, 2 W. W. Harr. (32 Del.) 120, 120 Atl. 88. And the court would take judicial notice of the fact that whisky was an intoxicating liquor. Jones on Ev. § 128, 23 Cyc. 61; Blatz v. Rohrbach, 116 N. Y. 450, 22 N. E. 1049, 6 L. R. A. 669; Rau v. People, 63 N. Y. 277. If, therefore, he was selling intoxicating liquor in his house on or about that date and had been selling it for about- two weeks immediately prior thereto, and whisky was within that class, under the facts of this case evidence relating to that offense had some reasonable connection with and relation to the particular offense charged; it is, therefore, logically permissible for the jury to infer that he not only had possession of liquor at that time but that the particular kind and quantity of liquor found in his home on that day was in his conscious possession. In reaching this conclusion we have not overlooked State v. Ryan, 1 Boyce 223, 75 Atl. 869; and if such conclusion is inconsistent with any of the rulings on evidence in that case we are unable to follow it so far as this particular question is concerned. The evidence in question was produced by the state in rebuttal. It contends that it is relevant because it tends to rebut the defense relied on by the plaintiff in error. It was in the nature of an admission by him, and, therefore, more properly constituted a part of the state’s primary case. As a general rule the order of proof is to some extent within the discretion of the trial court. Roberts v. State, 2 Boyce 385, 79 Atl. 396, Ann. Cas. 1914D, 1266. Being relevant to the issue, the mere fact that — 400 — evidence showing the commission of another offense by the defendant was offered and admitted in rebuttal, though more properly a part of the state’s original case does not, therefore, ordinarily, or in this case, constitute material error. State v. Roberts, supra. If the evidence tending to show that the defendant was selling liquor was relevant and proper in this case, was the testimony of Kempski and Benson admissible for any other than a probative purpose? Garboctowski, the defendant below, was asked on cross-examination whether he had admitted to Kempski and Benson at a certain time and place that he had been selling liquor, apparently meaning at his home, for about two weeks. This question related to a relevant and material fact and brought a negative answer. That he could, therefore, be contradicted with respect to such answer seems clear. Chamberlayne on Ev., vol. 4, § 3253; Chamberlayne’s Handbook on Ev., § 1021; State v. Kenny, 77 S. C. 236, 57 S. E. 859; Com. v. House, 36 Pa. Super. Ct. 363. From this aspect of the case the question put to Garboctowski • on cross-examination with respect to his admission to Kempski and Benson, though assigned as a cause of error, was not an improper one. For both of the reasons above given, the evidence in question was relevant and was properly admitted by the trial court. The judgment of the court below is, therefore, affirmed. Ed. Note: — The following Delaware cases considered the admissibility of evidence of other similar offenses in the trial of criminal cases. When admissible to show knowledge or intent. State v. Tyndal, 5 Harr. 488 (Passing counterfeit money; admitted. See, also, Effler v. State, 4 Boyce 62 at p. 67); State v. Cook, 4 Penn. 32 (Toying with female child; rejected); State v. Dlugozima, 7 Penn. 151, (using girl under age of consent; rejected); State v. Freedman, 3 Penn. 403, 406 (Receiving stolen goods; admitted); State v. Brown, 3 Boyce 499 (abortion; rejected,-discusses rule); State v. Handy, 7 Boyce 449 (Receiving stolen goods; admitted); State v. Greco, 7 Boyce 140 (assault with intent to commit rape; rejected,-discusses rule); State v. Brewer, 1 W. W. Harr. (31 Del.) 364 (Rape; rejected); Effler v. State, 4 Boyce 62 at p. 65, where the Super. Ct. said: “Testimony of other similar offenses has been admitted in this state as elsewhere, to show guilty knowledge or intent when there is or may be from the evidence an inference of mistake, accident, want of guilty knowledge, lawful purpose or innocent intent”. When admissible to show identity of the defendant, State v. Effler, 4 Boyce 62, see, also, report — 401 — of same case in lower court, 2 Boyce)2 (Conspiracy to steal). In holding that the evidence was improperly admitted in the lower Court, the Supreme Court on page 71, said: “To prove identity, * * * there must be some connection between the two offenses, and it is not sufficient that they be similar offenses committed by the same person”. When admissible to show a similar scheme, plan or system. State v. Steigler, Dorsey, et al., 7 Boyce 236, 258 (Conspiracy to cheat and defraud S.... Co. of certain plumber’s supplies; held not admissible on that ground but when other offense part of one and the same general conspiracy charged, rule different.) See, also, Effler v. State, 4 Boyce 62. For a more specific analysis of the Delaware cases on this question see State v. Clongli, 3 W. W. Harr. (33 Del.)--. Footnotes [1] See, also, State v. Wood, 3 W. W. Harr., (33 Del.),