Cathcart v. The Commonwealth

• Citation: 37 Pa. 108
• Parties: Cathcart <I>versus</I> The Commonwealth.
• Decision Date: 31 January 1861
• Court: United States State Supreme Court of Pennsylvania

37 Pa. 108

Cathcart versus The Commonwealth.

Supreme Court of Pennsylvania.

January 31, 1861.

ERROR to the Oyer and Terminer of Clearfield county.

The case was argued here by Wm. A. Wallace and H. Bucher Swope, for the prisoner, and by District Attorney R. J. Wallace and J. B. McEnally, for the Commonwealth.

The assignments of error, and the argument of the counsel, are fully noticed in the opinion of the court, which was delivered, January 31st 1861, by STRONG, J.

The consequences of our decision in this case are so momentous to the plaintiff in error, that we have felt constrained to examine the record with minute caution. Our review has forced upon us the conviction that there is nothing which would justify our sending the case back to another jury. It appears to have been most carefully tried. Nothing was withheld from the accused to which he was legally entitled; and he received every advantage in the admission of evidence, and in the instruction given to the jury, which he had a right to claim.

Before proceeding to a consideration of the errors assigned, in detail, it may not be out of place to repeat the remark often made, that our duty in such cases as this, is confined to adjudication upon the errors of law which appear upon the record. Outside of that we cannot look. We are not authorized to grant new trials unless the record exhibits that mistakes of the law were committed. In no other case have we power to interfere with the verdict of a jury. We could not, even if we were satisfied that they had found the facts erroneously. These observations are not new. They have frequently been made heretofore. Thus in Jewell v. The Commonwealth, 10 Harris 99, it was said that "an error not apparent on the face of the recorded proceedings, however gross and improper it may have been, is not a subject of review here; and the prisoner has no more right to expect relief on account of such irregularities from us, than from any other five citizens of the state who are invested with no judicial authority at all." Similar remarks were made in Fife, Jones, and Stewart v. The Commonwealth, 5 Casey 429. It is a mistaken opinion, sometimes entertained, that in criminal cases our powers are greater than they are in civil. It is not so. When the life of a human being may be dependent on our decision, there is always enough to induce us very carefully to scan the record, and inquire whether he has been deprived of anything secured to him by the law by which he might have been benefitted. But in criminal as well as in civil cases, our inquiries must be confined to the record, and in both classes of cases there is but one rule of construction. In both there is a presumption that the proceedings were regular, and it is incumbent upon the plaintiff in error to show by the record that errors were committed before we can interfere. If this were not so, the administration of criminal justice would be impossible. We are not so to administer the criminal law as to make it an impenetrable shield for the guilty.

Turning now to the specific averments of error, the first which we notice is the allegation that the jury were not properly sworn. The record, however, recites that they were "all sworn or affirmed respectively to try, &c." This of course raises the presumption that they were properly sworn or affirmed. No exception was taken to the mode of qualification, and there is nothing before us indicating any irregularity. One paper-book, indeed, contains part of the opinion of the court below, upon the motion for a new trial, in which it is stated that the jury were sworn jointly and severally, instead of severally; but such an opinion is no part of the record, and it has often been held that the record cannot be corrected by it. Even if it could, the same opinion shows, that no objection was made to the manner in which the oath or affirmation was administered. This assignment, therefore, points to no error of which we can take notice.

Another specification of error is, that the record does not show that the prisoner had counsel at the trial. It is based upon an alleged presumption against the regularity of the proceedings — a presumption directly opposite to that which we have shown to exist. It assumes that those rights of the prisoner were denied to him, which the record does not show affirmatively were granted. As well might it be assumed that the court charged the jury erroneously, and the Commonwealth be required to prove that the charge was in all points correct, even before it is attacked. The right to be heard by himself and counsel is doubtless a constitutional right, and if it had been denied there would have been error; but we are not to presume that it was denied, because the record does not exhibit the fact that it was accorded. There are many rights of an accused person, some constitutional and others not, of which the record takes no notice — such as the right to compulsory process for witnesses, the right to call witnesses, or to cross-examine those of the prosecution; and the right to be heard by himself and counsel is one of them. The safety of the accused is not imperilled by the silence of the record; for, if any of these rights be denied, there is an easy method of bringing upon the record the fact of the denial.

Another assignment of error is to the refusal of the court to grant a new trial. It has so often been said that such a refusal is not assignable for error, that we dismiss it without further notice.

An exception was also taken, in the court below, to the rejection of an offer by the defendant to prove that he always had been known and reputed among his neighbours as a kindhearted man. This offer the court overruled in the terms in which it was made; but accompanied its rejection by permission to show the character of the defendant for peaceableness and regularity of conduct, and of good feelings toward the deceased, or in any other respect which had a proper relation to the subject-matter of the prosecution. We cannot say that here was error. We do not discover that any right of the defendant was denied. The door was opened widely for him to show his reputation for peaceableness and regularity of conduct, and for anything that tended to show the improbability of his having perpetrated the crime of which he was accused. It was his peaceableness, his regularity of conduct, his quiet habits, his freedom from lawlessness, that were assailed. All these he had full permission to defend by adducing the opinions of his neighbours, and his general reputation.

We pass now to the errors assigned to the charge. They cannot be well understood unless we bear in mind what the case was, and what application the charge had to it. That the deceased was killed by a gun-shot wound inflicted upon her by the defendant, was not in controversy. It was fully proved, and indeed conceded by the defendant. There was no evidence that the deed was done in sudden heat, or in an affray, or in consequence of provocation. The defendant made no such allegation; but he insisted that the case...