Commonwealth v. Shorteno

Hassler, J., The three above-named defendants were ¡harged with, and convicted of, transporting liquor. All were riding in the mtomobile in which the liquor was being transported, when it was stopped >y an ofiicer and the liquor found in it. At the trial, Wilson, who was the >wner of the automobile, and Mackle testified that they did not know that the iquor was in the automobile, it having been put there by Shorteno, who isked Wilson to bring two empty kegs to a friend in Mount Joy, through vhich town they expected to pass. Shorteno denied that he put the liquor [700] in the automobile, and testified that he did not know it was there until the officers stopped them near Elizabethtown and took it out. He denied that he asked permission to put two empty kegs in the automobile to bring to a mar in Mount Joy. He also denies that he put them in the ear. The jury convicted all of the defendants, and we are now asked by Shorteno to grant hin a new trial. The reason upon which the application is based is that we permitted Shor-teno to be asked, on cross-examination, whether he had ever been convicted of the crime of selling or possessing liquor in York County. Section 1 of the Act of March 15, 1911, P. L. 20, provides: “That hereaftei any person charged with any crime and called as a witness in his own behali shall not be asked, and, if asked, shall not be required to answer, any question tending to show that he has committed, or been charged with, or been convicted of any offence other than the one wherewith he shall then be charged or tending to show that he has been of bad character or reputation, unless “1. He shall have at such trial, personally or by his advocate, asked questions of the witness for the prosecution with a view to establish his own gooc reputation or character, or has given evidence tending to prove his own good character or reputation; or “2. He shall have testified at such trial against a co-defendant charged with the same offence.” As Shorteno was a defendant and called as a witness in his own behalf, ii was not proper to have asked him whether he had ever been charged with or convicted of another offence, or to have compelled him to answer that question, unless he came within one of the two exceptions mentioned in thi act; that is, attempted to prove a good character or testified against his co-defendants. He did not attempt to prove a good character, nor did he testify against his co-defendants. He testified that he did not put the liquor in the automobile and did not know it was there until it was found by the officer. This was not testifying against his co-defendants directly, but it raised an implication of their guilt. We do not think that this brought the defendant within the second exception referred to, as the act permits a defendant to testify in his own behalf without rendering himself liable to be questioned in regard tc former convictions. In Com. v. Pezzner, 78 Pa. Superior Ct. 286, a defendant, who had noi attempted to prove a good character nor testify against his co-defendants was asked, but did not answer, a question as to his former conviction, aftei he had testified that he had nothing to do with the commission of the offence for which he and his co-defendants were being tried. The Superior Couri decided that the asking of this question was in violation of the Act oí March 15, 1911, P. L. 20, even though the defendant did not answer it, anc reversed the lower court in refusing to grant a new trial. See, also, Com. v. Vardelle, 70 Pa. Superior Ct. 241, and Com. v. Wells, 69 Pa. Superior Ct. 227. We do not think that the second exception in the Act of 1911, supra intended to prevent a defendant, in his own defence, from denying that he committed the crime of which he is charged, even though such denial implicated his co-defendants, so as to deprive him of the protection which the aci gave him, viz., from being asked or compelled to answer whether he was previously convicted of any crime. It was error, therefore, to have permitted it in this case, and we make absolute the rule for a new trial. From George Ross Eshleman, Lancaster, Pa.