Buck v. Commonwealth

• Decision Date: 05 January 1885
• Parties: Buck <I>versus</I> Commonwealth.
• Court: Pennsylvania Supreme Court

107 Pa. 486

Buck versus Commonwealth.

Supreme Court of Pennsylvania.

October 31, 1884.

January 5, 1885.

October 31st, 1884.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT and CLARK, JJ. GREEN, J., absent

CERTIORARI to the Court of Oyer and Terminer of Allegheny county: Of October and November Term, 1884, No. 24.

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Thomas M. Marshall and W. D. Moore, for plaintiff in error. —The offer of the plea of Gordon and Geary could have no other effect than to damage Dr. Buck. It did not tend to prove his confederacy with them. Prior to the change in criminal practice, which allows an accessory to be tried before the conviction of the principal, there was a reason for offering the record of the conviction of the principal. But even then conviction must have been followed by judgment on the verdict: 2 Bishop's Crim. Procedure, sec. 13; 1 Hale P. C., side page 625. Here the plea was only nolo contendere and no judgment. The current of respectable authority is against the reception of this evidence: 2 Bishop's Crim. Procedure, sec. 13; Rex v. Turner, 1 Moody C. C. 347; Roscoe's Criminal Evidence, side pp. 51 and 52; 1 Greenleaf's Evidence, sec. 233, notes 5 and 6.

The third assignment is sustained by the case of Watson v. Com., 14 Norris 424.

John S. Robb (Wm. Reardon and W. D. Porter, District Attorney, with him), for defendant in error.—The fourth and fifth assignments relate to the same matter. After the Commonwealth closed, the witness Alpert was called two or three times for cross-examination. Alpert was again re-called, as defendant said, for cross-examination, and the Commonwealth objected to this manner of proceeding and requested defendant to put his offer in writing. The matter was clearly within the discretion of the court. The offer to prove the finding of sand-bags upon Gordon and Geary was not offered to prove the guilt of Buck, but only as tending to show the guilt of the principals. Since the Act of March 31st, 1860, it is not necessary to show the conviction of the principal felon, yet it is indispensable to aver and prove his guilt on the trial of an accessory; and for this purpose alone was the plea of Gordon and Geary offered. The legal effect of nolo contendere is the same as the plea of guilty. A case similar to this is United States v. Hartwell, 3 Clifford U. S. C. C. Rep. 232. See also, State v. Duncan, 6 Iredell 236; State v. Ricker, 29 Maine 84; State v. Rand, 33 N. H. 216; Com. v. Crowninshield, 10 Pick. 497; People v. Buckland, 13 Wend. 592; Holmes v. Com., 1 Casey 221.

Mr. Justice PAXSON delivered the opinion of the court, January 5th, 1885.

The fact that the juror, William F. Barton, had served as a juror in the case of the Commonwealth v. Gordon et al., No. 5, of September Session, 1883, was not a sufficient ground of challenge for cause. It was a different case, and involved an entirely different state of facts. The only way the defendant below could get rid of the juror was to challenge him peremptorily.

The second assignment raises a more important question. It alleges that the court below erred in admitting in evidence against the defendant the plea of nolo contendere which had been entered by Gordon and Geary. The latter were charged in the same indictment as principals in the robbery; the defendant Buck being charged as accessory before and after the fact. Gordon and Geary, the principals, had, as before stated, pleaded nolo contendere, but had not been sentenced; and the trial proceeded as to Buck as accessory, upon the plea of not guilty. The Commonwealth then offered the plea of nolo contendere in evidence as proof of the guilt of the principals. It was objected to as incompetent and irrelevant to affect the defendant Buck, now on trial. It was clearly incompetent to show the participation of Buck in the offence. Was it competent to show the guilt of the principals; to prove that the robbery had been committed to which it was charged Buck was accessory?

The plea of nolo contendere is a mild form of pleading guilty. It is seldom used in this state, though in general practice in some of the New England states. "It has the same effect as a plea of guilty so far as concerns the proceedings upon the indictment, and a defendant who is sentenced upon such a plea to pay a fine is convicted of the offence for which he was indicted:" Wharton's American Criminal Law, § 533. The advantage, however, which may attend this plea is, that when accompanied by a protestation of the defendant's innocence it will not conclude him in a civil action from contesting the facts charged in the indictment: Com. v. Horton, 9 Pick. 206. And in Massachusetts, under statute of 1855, c. 215, § 35, a defendant in a prosecution under that statute cannot be adjudged guilty on a plea of nolo contendere unless it appears by the record that the plea was received with the consent of the prosecutor: Com. v. Adams, 6 Gray 359.

Since the Act of 1860 it is no longer necessary to convict the principals before the accessory can be tried, yet it is still requisite in some way to prove that the principals are guilty before the accessory can be convicted. No man can be accessory to a crime which has never been committed. The authorities show that the guilt of the principal felon may be proved by the record of his conviction, or by evidence aliunde: 2 Starkie on Evidence 9. Yet even the record of the conviction is only prima facie evidence. As to the accessory it is res inter alios acta: Foster, 365; Smith's Case, 1 Leach 323; Prosser's Case, mentioned in note to Smith's Case, 1 Id. 324; Rex v. Blick, 4 C. & P. 378; Rex v. McDaniel, 19 State Trials 806; Arch. Crim. Pleading and Practice. In Cook v. Field, 3 Esp. R. 134, it was said by BEARCROFT, J., and assented to by Lord KENYON, that where the principal has been convicted, it is nevertheless on the trial of the...