Commonwealth v. Craig

• Citation: 19 Pa.Super. 81
• Decision Date: 21 January 1902
• Docket Number: 20-1902
• Parties: Commonwealth v. Craig, Appellant
• Court: Superior Court of Pennsylvania

19 Pa.Super. 81

Commonwealth v. Craig, Appellant

No. 20-1902

Superior Court of Pennsylvania

January 21, 1902

Argued October 28, 1901 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of Q. S. Cumberland Co.-1901, No. 27, on verdict of guilty in case of Commonwealth v. Harper Craig, Charles Butler, Jack Battles and Samuel Nicholson of whom Harper Craig and Charles Butler are appellants.

Indictment for larceny. Before Biddle, P. J.

From the record the evidence tended to show that the defendants on January 12 or 13, 1900, stole twenty-five chickens from the farm of James McCullough.

The defendants moved to quash the indictment, filing the following reasons therefor:

1. Because one of the members of the grand jury who found the bill was disqualified, to wit: Horace Barner, for the reason that he had, before the meeting of the court, and after he had been summoned as a grand juror, been actively engaged in assisting the prosecution of the defendants by aiding and securing evidence for the commonwealth, and was a member of an association organized for that purpose.

2. Because, before the meeting of the grand jury he had contributed time, effort and money to employ detectives and attorneys in the effort to secure the indictment and conviction of the defendant.

3. Because, before the meeting of the grand jury he had frequent conferences with detectives, witnesses and members of the association with which he is connected, as aforesaid; was the secretary of said association, received reports from said detectives, and was the custodian thereof.

After a hearing had been begun on the motion to quash the indictment the following statement was made to the court by counsel for the defendants:

I present to the court the subpoena and proof of service of same upon Mr. Roat, the detective, requiring him to be present in court this morning to support the averments made in the motion to quash and represent to the court that he is an important witness; that he lives at Harrisburg, eighteen miles distant; that he will show to the court that his agents were employed to furnish information to the association, of which Mr. Barner, a grand juror, is secretary; that it was furnished; that written reports were sent to him, and this for the purpose of showing that Mr. Barner was disqualified to sit as a juror, and that this information was gathered for the purpose of being used at the present trial.

Mr. Beltzhoover: This offer is objected to because Mr. Roat last evening was examined by the district attorney and associate counsel in the presence of Mr. Barner, and he admitted there that he probably did not send any written reports and that he probably had them at home; that he had no knowledge about the case of any kind of a personal character, and never did know anything about the case except what had been told him by Mr. Naugle and Mr. Smith, to persons whose whereabouts he did not then know. Mr. Barner, in the presence of Mr. Roat, said he had never gotten any written reports of any kind, and Mr. Roat did not insist that he had ever sent them, but admitted that he must have forgotten to send them or they must have miscarried.

Lastly, that both admitted that they never had in any way communicated anything of any kind to the district attorney or the commonwealth.

Judge Sadler:

It is understood that these applications are made in the four cases pending.

The Court: We have just listened to a full examination of Horace Barner in relation to the matters averred in the motion to quash, and after careful consideration are of the opinion that we would not be justified in delaying the trial of these cases until Mr. Roat, who does not live in this county, can be brought here. The motions to quash are overruled and an exception noted for defendants in each case.

When William Fickes, a witness for the commonwealth, was on the stand, the following question was asked:

" Q. Do you know Harper Craig?

A. Yes, sir.

Q. Have you bought chickens from him?"

Judge Sadler:

Objected to. What is the purpose?

Mr. Beltzhoover: The purpose of the question is to show that in January, 1900, he bought two bags of chickens from Harper Craig early on a Monday morning.

Judge Sadler:

The objection is that it don't propose in any way to identify the chickens as to their character, identity, amount, nor as to the time. It might relate, therefore to sales of other chickens which were perfectly legitimate. It is incompetent and irrelevant.

The Court: We think the testimony should be admitted. The objection is overruled and an exception noted for defendant.

Mr. Beltzhoover:"

Q. Did you buy chickens from Harper Craig in January, 1900?

A. I cannot give you the date.

Q. Did you buy chickens from him?"

Objected to.

" Q. What is your recollection about the time it was?"

Objected to.

" Q. What is your best recollection, if you have any, in regard to that?

A. My best recollection is that I bought chickens from him the last year he lived on the farm, but as to the exact month or date I can't give it to you for I have no record, and I kept no record.

Q. Have you any recollection as to the amount of chickens?

A. Indeed I have not; no, sir, I could not say.

Q. Have you no recollection as to the time of year it was?

A. Well, no, I can hardly fix the time of year.

Q. Do your books show?

A. No, sir, I kept no record of the stuff we bought in on that line.

Q. Can't you tell us about the month or year?

A. Indeed I could not fix the time at all.

Q. Didn't you tell me that to the best of your recollection it was a certain time?"

Objected to.

" Q. Have you any recollection of having said to me when you believed it occurred?

A. To the best of my recollection it might have been in the fall or spring of 1899 or 1900, before the barn was burned, but how long before I can't tell you.

Q. Did you tell me about how long before the barn was burned?

A. I could not fix the time before the barn was burned.

Q. Didn't you tell me how long before it was burned?

A. I may have said it might have been."

Judge Sadler:

The commonwealth in this case having failed to show in chief the exact date in January on which the larceny was committed, the information in the case is offered, which states that it was on January 12 or 13, 1900, for the purpose of aiding the jury in determining when the larceny was actually committed, that matter having been left in doubt by the commonwealth's testimony.

Mr Beltzhoover: Objected to, first, that the information is an ex parte statement by an officer of the law, Mr. Housholder, who does not appear to have any personal knowledge of the facts, and must have sworn from information and belief. This paper cannot therefore be evidence of anything. Second. The best evidence of what Mr. Housholder can swear to of his own knowledge would be himself; he is sitting here, and the gentleman can call him and ascertain, if he can tell, when this larceny was committed. Third. The evidence is incompetent and irrelevant for the purpose offered.

The Court: We consider the proposed evidence to be inadmissible. The objections are sustained and an exception noted for the defendant.

The writing offered was as follows:

" Cumberland County, ss:

The Commonwealth of Pennsylvania.

" Before me, the subscriber, one of the justices of the peace in and for said Cumberland County, personally came Frank Housholder, Constable of the Borough of Newville, who, upon his solemn oath, according to law, deposeth and saith, that on the 12th or 13th day of January, A.D. 1900, Harper Craig, Charles Butler, Jack Battles and Samuel Nicholson did feloniously steal, take and carry away from the residence and farm of James McCullough, in said county, about twenty chickens of the value of ten dollars. Your deponent desires that the said Harper Craig, Charles Butler, Jack Battles and Samuel Nicholson be arrested and dealt with according to law, and further the deponent saith not.

" Frank Housholder,

" Constable.

" Sworn and subscribed before me the 18th day of June, A.D. 1901.

" A. F. Weaver,

" Justice."

When Fillmore Washington, was on the stand the following offer was made:

Mr. Wetzel: Samuel Nicholson, one of the defendants and an accomplice with the other defendants who plead not guilty, when upon the stand was asked whether, upon the day that Martin Fry was hanged, he did not say, in the presence of Henry Jones and Fillmore Washington, that he ought not to be here; that he had been promised to be left out at court; that he believed they were going back on him; he had a large family to support and ought to be at home at work for them, which conversation the said Nicholson denied. Nicholson also denied that he had been promised any reward for his confession in the case. This testimony is therefore offered for the purpose of contradicting the statements made by Nicholson when upon the stand and to show bias and interest in it.

Mr. Beltzhoover: Objected to, first, that the alleged conversation with Nicholson was whether he had said, in the presence of Washington and others, that he ought to be out; that he had been promised to be out and they were going back on him. They do not propose to show by whom he had been promised anything, or by whom he had been promised his discharge from jail, and therefore any such promise would be irrelevant and ineffective in any way as evidence for the defense. Second. The witness's testimony not having been relevant directly the gentlemen were concluded by his answers and cannot contradict him. Third. The evidence is incompetent, irrelevant and improper.

The Court: The objections are...