Commonwealth v. Racco

• Decision Date: 24 May 1909
• Docket Number: 82
• Citation: 73 A. 1067,225 Pa. 113
• Parties: Commonwealth v. Racco, Appellant
• Court: Pennsylvania Supreme Court

73 A. 1067

225 Pa. 113

Commonwealth v. Racco, Appellant

No. 82

Supreme Court of Pennsylvania

May 24, 1909

Argued April 26, 1909

Appeal, No. 82, Oct. T., 1909, by defendant, from judgment of O. & T. Lawrence Co., June T., 1908, No. 1, on verdict of guilty in case of Commonwealth v. Rocco Racco. Affirmed.

Indictment for murder. Before WILLIAM E. PORTER, J., specially presiding.

At the trial and from the record it appeared that the prisoner was indicted for the murder of Seeley Houk, a game warden in Lawrence county. The prisoner took the stand on his own behalf and on cross-examination was asked whether he had not been convicted and sentenced for larceny, assault and battery, wounding, and obtaining money under false pretenses. To all of which he answered, no. [6-16]

F. P Dimaio, a detective, was permitted under objection and exception to testify that the prisoner had confessed to him the commission of the crimes as to which he had been cross-examined. [17]

Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.

Errors assigned were (6-17) rulings on evidence, quoting the bill of exceptions.

The assignments of error are all overruled, the judgment is affirmed and the record remitted to the court below for the purpose of execution.

H. K Gregory, of Gregory & Dickey, and A. W. Gardner, for appellant. -- The defendant on offering himself as a witness may not on cross-examination be inquired of former convictions: People v. Crapo, 76 N.Y. 288; Com. v. Craig, 19 Pa.Super. 81; Buck v. Com., 107 Pa. 486; Com. v. House, 6 Pa. Superior Ct. 92; Elliott v. Boyles, 31 Pa. 65; Com. v. Pioso, 19 Lanc. L.R. 145.

The testimony of detective Dimaio was clearly not competent: Com. v. Wilson, 186 Pa. 1.

Charles H. Young, district attorney, and S. L. McCracken, for appellee. -- The cross-examination of the prisoner was proper: Hanoff v. State, 37 Ohio 178; Brandon v. People, 42 N.Y. 265; LaBeau v. People, 34 N.Y. 223; Turnpike-Road Co. v. Loomis, 32 N.Y. 127; Ryan v. People, 79 N.Y. 593; People v. Clark, 102 N.Y. 735 (8 N.E. Repr. 38); People v. Casey, 72 N.Y. 393; People v. Noelke, 94 N.Y. 137; People v. Hooghkerk, 96 N.Y. 149; Com. v. Reece, 28 Pa. C.C. Rep. 652; Wilbur v. Flood, 16 Mich. 40; Hannah v. McKellip, 49 Barb. 342; Com. v. Barry, 8 Pa. C.C. Rep. 216; United States v. Craig, 4 Wash. C.C. 729.

The credit of a witness may be impeached by proof that he has made statements out of court contrary to what he has testified at the trial: Schlater v. Winpenny, 75 Pa. 321; Wilson v. Wilson, 137 Pa. 269; Zebley v. Storey, 117 Pa. 478.

H. K. Gregory, of Gregory & Dickey, and A. W. Gardner, for appellant, in reply. -- The general rule in jurisdictions where there is no statutory limitation is that an accused person testifying in his own behalf is to be cross-examined like any other witness: People v. Tice, 15 L.R.A. 669, 671; Com. v. Bell, 20 Pa. C.C. Rep. 223; Smith v. Hine, 177 Pa. 203.

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE BROWN:

We have discovered no reversible error in this record, and but two of the seven questions raised by the nineteen assignments call for any discussion. One of these is as to the right of the commonwealth to ask the prisoner on cross-examination whether he had not been previously convicted of various crimes. He was asked, under objection, whether he had not been convicted and sentenced to prison for larceny assault and battery and wounding and for obtaining money under false pretenses. When he offered to testify in his own behalf his credibility as an intensely interested witness became at once a question for the jury. It was proper that they should learn whatever might aid them in determining what credit should be given to his testimony, and no one was so able to enlighten them as himself. Under our statute permitting him to testify no restriction was placed upon the limit of his cross-examination. It was, therefore, largely within the discretion of the trial judge, and, unless that discretion was so abused that substantial injury has resulted to the prisoner, the judgment will not be reversed. If he had been formerly convicted of the offenses stated, no one knew so better than himself, and it is not to be pretended that his affirmative answers would not have affected his credibility. If he had answered untruthfully in the negative, the way would have been open to the commonwealth to impeach his testimony by competent evidence of his convictions. Though courts in other jurisdictions and textwriters differ as to the right to ask a witness whether he had been convicted of a crime for the purpose of affecting his credibility, the rule as followed by the lower courts in our state since defendants in criminal cases have been made competent witnesses, has been, according to the observation and experience of every member of this court, to allow such questions to be put to a defendant as were asked this prisoner on his cross-examination. The only exception now to be recalled is Com. v. Pioso, 19 Lanc. L.R. 145, in which the court of quarter sessions of Lancaster county, following an expression of PAXSON, J., in Buck v. Com., 107 Pa. 486, held that it was improper to ask the defendant whether he had not, a short time before, been convicted of a crime. In Buck v. Com. the question asked the witness was held to have been improper because if he had been convicted of embezzlement the proper evidence of that fact was the record. We do not now approve what was there said, and, if it is to be regarded as...