Brown v. Commonwealth

Decision Date05 April 1873
Citation73 Pa. 321
PartiesBROWN <I>versus</I> The Commonwealth.
CourtPennsylvania Supreme Court

Before READ, C. J., AGNEW, SHARSWOOD and MERCUR, JJ. WILLIAMS, J., at Nisi Prius

Error to the Criminal Court of Schuylkill county: No. 78, to January Term 1873.

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G. R. Kaercher, F. G. Farquhar, and B. W. Cummings, for plaintiff in error.

J. B. Reilly, District Attorney, and L. Bartholomew (with whom was B. B. McCool), for the Commonwealth.

The opinion of the court was delivered, April 5th 1873, by READ, C. J.

This is a writ of error to the Criminal Court of Schuylkill county, sued out under the Act of the 15th February 1870, upon the oath of the defendant, and brings up the whole record.

The constitutionality and jurisdiction of this court have been finally settled in Commonwealth v. Green, 8 P. F. Smith 226, and in Commonwealth v. Hipple, 19 Id. 9, and its concurrent jurisdiction with the Courts of Quarter Sessions of the Peace and Oyer and Terminer and General Jail Delivery of the County of Schuylkill, is fully recognised and established by the Act of 22d April 1870 (Pamph. L. 1254), and the court below were therefore right in overruling the plea to the jurisdiction, entered by the defendant.

On the preliminary hearing before the committing magistrate, the defendant and his counsel being present, a witness was examined whose testimony was taken down by defendant's counsel, and the witness having died before the trial, the notes of his evidence proved by the counsel under oath, were offered in evidence, objected to and admitted. It was objected that by the Constitution of the state, the defendant was entitled to meet the witnesses face to face.

The doctrine on this subject is thus laid down in the 3d volume of Russell on Crimes, by Greaves, 4th edition, 1865, page 249. "If there has been a previous criminal prosecution between the same parties, and the point in issue was the same, the testimony of a deceased witness, given upon oath at the former trial, is admissible on the subsequent trial, and may be proved by any one who heard him give evidence," and the same is repeated at page 424, in the note. We find the same rule in 1 Phillips & Arnold's Evidence, pp. 306-7, and in 1 Pitt Taylor on Evidence, 4th edition, 1864, pp. 445 447. Dr. Wharton, in his valuable Treatise on Criminal Law in the United States, vol. 1, p. 667, says: "The testimony of a deceased witness given at a former trial or examination, may be proved at a subsequent trial by persons who heard him testify. Even the notes of counsel of the testimony of such witness on a former trial between the same parties, touching the same subject-matter, are evidence when proved to be correct in substance, although the counsel does not recollect the testimony independently of his notes. The better opinion seems to be that it is sufficient to prove the substance of what the deceased witness said, provided the material particulars are stated, though it has been sometimes held, that unless the precise words could be given, the testimony would be rejected."

In The Commonwealth v. Richards, 18 Pick. 434, it was held that the 12th article of the Declaration of Rights, which provides that in criminal cases the accused shall have the right "to meet the witnesses against him face to face," is not violated by the admission of testimony in a criminal trial before a jury to prove what a deceased witness testified at the preliminary examination of the accused before a justice of the peace."

This case was affirmed seven years afterwards in Warren v. Nichols, in 6 Metc. 261, and the further ruling in that case "that the whole of the testimony of the deceased witness upon the point in question, and the precise words used by him must be proved," was substantially affirmed. Hubbard, Justice, dissented from this ruling and assigned very cogent reasons against it. "As the decision now stands," says this able judge, "it prescribes a rule for the admission of testimony, which the imperfection of our nature, in the construction of our memories, will not warrant. It in truth excludes the thing it proposes to admit, and at the same time opens a door for knaves to enter, where honest men cannot approach." "Other learned judges have maintained, that a rule so rigid was unwise, and I confess, I prefer the reasoning of Gibson, J., in the case of Cornell v. Green, 10 S. & R. 16, to that of the learned judge in Commonwealth v. Richards, and with him agrees also the learned author of the Treatise on the Law of Evidence." 1 Greenl. § 165.

Upon this subject the ablest discussion of the whole question is to be found in the opinion of Judge Drummond, in The United States v. Macomb, 5 McLane's Rep. 286, delivered in the Circuit Court of the United States for the District of Illinois, at July Term 1851. At the preliminary examination, a witness, since deceased, testified in relation to the offence, which was robbing the mail. The accused was present and his counsel cross-examined the witness. Witnesses were permitted on a trial before a jury, under an indictment found for the same offence, to prove what the deceased witness testified to at the preliminary examination. It is sufficient in such case to prove substantially, all that the deceased witness testified upon the particular subject of inquiry. A decision upon the same point is to be found in United States v. White, 5 Cranch's Circuit Court Rep. 460.

The 6th article of the amendments to the Constitution of the United States provides that in all criminal prosecutions the accused shall enjoy the right "to be confronted with the witnesses against him."

The Constitution of Pennsylvania of 1776, provided "that in all prosecutions for criminal offences, a man hath a right to be confronted with the witnesses." The Declaration of Rights, in the Constitution of 1790, changed the phraseology from confronting, to "to meet the witnesses face to face."

The doctrine enunciated by Judge Drummond in 1851, was followed by the Supreme Court of Missouri, after a very exhaustive argument on the constitutional question, in The State v. McO'Blenis in 24 Missouri (3 Jones) 402, and The State v. Baker, Id. 437, in 1857, and in The State v. Houser, 26 Missouri (5 Jones 431), in 1858, and by the Supreme Court of Ohio in Summons v. The State, in 5 Ohio (N. S.) 325, in 1856.

In this state the most liberal rule has been adopted, in relation to the evidence of what was testified to by a deceased witness on a former trial or examination, as will be seen by referring to Cornell v. Green, 10 S. & R. 14; Chess v. Chess, 17 Id. 409; Moore v. Pearson, 6 W. & S. 50, and Rhine v. Robinson, 3 Casey 30, in which case Chief Justice Lewis said: "The notes of counsel, showing what a deceased witness testified to on a former trial between the same parties touching the same subject-matter, are evidence when proved to be correct in substance, although the counsel did not recollect the testimony independent of his notes, and although he did not recollect the cross-examination." To which may be added the decision in Phila. & Reading R. R. v. Spearen, 11 Wright 306, the opinion being delivered by my brother Agnew.

There was, therefore, no error in the court admitting the notes of Mr. McCool of the testimony of Ewing, a deceased witness, in the examination before the committing magistrate, or the notes of any other counsel, or those of the committing magistrate himself.

"Upon the trial of any indictment for murder, or voluntary manslaughter, it shall and may be lawful for the defendant or defendants to except to any decision of the court, upon any point of evidence or law, which exception shall be noted by the court, and filed of record as in civil cases, and a writ of error to the Supreme Court may be taken by the defendant or defendants after conviction and sentence." "If, during the trial upon any indictment for murder or voluntary manslaughter, the court shall be required by the defendant or defendants to give an opinion...

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    ...27 Pa. 30, followed and quoted with approval in Phila. & Reading R. R. v. Spearen, 47 Pa. 306, 86 Am. Dec. 544, and Brown v. Commonwealth, 73 Pa. 321, 13 Am. Rep. 740. But the better rule, according to the weight of modern authority, is to the effect that unless the witness be able to give ......
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