Commonwealth v. Stewart

• Citation: 65 Pa.Super. 409
• Decision Date: 07 March 1917
• Docket Number: 49-1916
• Parties: Commonwealth v. Stewart, Appellant
• Court: Superior Court of Pennsylvania

65 Pa.Super. 409

Commonwealth v. Stewart, Appellant

No. 49-1916

Superior Court of Pennsylvania

March 7, 1917

Argued October 9, 1916 [Syllabus Matter]

Appeal by defendant, from judgment of Municipal Court, Philadelphia Co.-1915, No. 238, on verdict of guilty in case of Commonwealth v. Ethel J. Stewart.

Indictment for adultery with one Charles A. Norato. Before Crane, J.

Ethel J. Stewart was indicted for adultery, and Norato for fornication. By election of the defendants the two indictments were tried together.

Elizabeth A. Moorehouse, a witness for prosecution, was asked the question:

" Q. -- Did you have a conversation with the defendant at that time?

" A. -- Yes, sir.

" Mr. Griffith: What do you mean by the 'defendant'?

" Q. -- The defendant, Norato?

" A. -- Yes, sir.

" Q. -- State what he said to you and what you said to him?

" (Objected to.)

" Mr. Fox: This has reference to the first charge of fornication, of certain admissions made by the defendant Norato; it also has reference to the adultery charge because we are going to identify his handwriting, which we find is a material question in this case.

" (Objection overruled. Exception for defendant.)"

Edra L. Wenrich was examined on cross-examination as follows:

" Q. -- You claim Dr. Stewart is a friend of yours, do you not, a particularly dear friend of yours?

" A. -- I never claimed so.

" Q. -- He visited your house often in that four or five years, didn't he?

" A. -- Yes, sir.

" Q. -- He saw you professionally and he pays you social calls, does he not?

" A. -- Yes, sir.

" Q. -- His social calls sometimes extend to late in the morning?

" (Objected to. Objection sustained.)

" Q. -- He comes sometimes as late as nine o'clock at night, does he not?

" The Court: The witness is not on trial. We will sustain the objection to the last question.

" (Exception for defendant.)"

" Q. -- This condition of intimacy also prevailed between you and Dr. Stewart, has it not?

" A. -- I wouldn't call it intimacy; I call it a friendliness.

" Q. -- You run around in his automobile, do you not?

" (Objected to. Objection sustained.)

" (Exception for defendant.)"

" Q. -- When Mrs. Stewart, either by direct statements or innuendo, as you say, admitted to you the intimacy of her relationship with Mr. Norato, did you make any reply whatever at any time?

" A. -- Yes, I have. On some occasions when there have been disagreements between Mr. Norato and Mrs. Stewart, I told her I didn't think he appreciated her; that she was foolish.

" Q. -- Is that all you said?

" A. -- Well, I might have said more than that, but that I did say.

" Q. -- You don't recall --

" The Court: We are not concerned with what this witness said in reply. We are only concerned with the statements made by the defendant in the nature of an admission concerning the charges she is called here to answer to-day."

Verdict of guilty upon which judgment of sentence was passed.

Errors assigned were rulings on evidence and in allowing a joint trial.

Reversed.

James Gay Gordon, with him David R. Griffith, Jr., with him William P. Davis, Jr., for appellant, cited: Fife v. Com., 29 Pa. 429; Ott v. Houghton, 30 Pa. 451; Com. v. Bell, 4 Pa.Super. 187.

Charles Edwin Fox, with him Samuel P. Rotan, District Attorney, for appellee, cited: Com. v. Hartman, 31 Pa.Super. 364; Com. v. Dupes, 14 Pa.C.C.R. 238.

Before Orlady, P. J., Porter, Henderson, Head, Kephart, Trexler and Williams, JJ.

OPINION

PORTER, J.

The appellant was tried and convicted in the court below upon an indictment charging adultery. Her alleged paramour, Norato, was, in a separate indictment, charged with fornication. By the agreement of counsel, who represented both defendants, and the district attorney, both cases were tried at the same time and before the same jury. We have here an assignment of error seeking a reversal of the judgment against this appellant upon the ground that the court below ought not to have allowed a joint trial of the appellant with Norato, the two being held to answer under separate and distinct bills of indictment, charging separate and distinct offenses. This assignment is founded upon no ruling of the court below, for the court was given no opportunity to pass upon the question. The defendants were charged in separate indictments and they could not, against their protest, have been tried at the same time. The offenses charged were, however, mere misdemeanors and the unlawful acts charged were the joint acts of the parties, although they were separately indicted. The right to be tried separately was not one of those fundamental constitutional rights which the parties might not waive. In this case it does not appear from the record proper that any other person was tried at the same time with this defendant; that the parties were tried at the same time was but a mere incident of the trial, and that incident is not brought upon the record by any exception. We might, therefore, properly dismiss this specification upon this narrow ground. We are of opinion that there is no reason for holding that parties who are separately indicted for the same unlawful act, in which each is charged to have participated, and where the same evidence applies to both, may not, with the consent of the prosecuting officer, elect to be tried at the same time and before the same jury. It has been held in Massachusetts, that parties, who stood in the same relation to each other, with regard to the crime, as did this appellant and Norato, might be jointly indicted and jointly tried: Commonwealth v. Elwell, 2 Met. 190. When parties elect to be tried together the accused may subject themselves to the necessary incidents of a joint trial, one of which is the admission of competent testimony against one of them which might incidentally prejudice the other, but they have a remedy for this by requesting the court to instruct the jury as to the application of such testimony. Even those who are charged with a capital offense, and who have the right to elect whether they shall be tried separately or jointly, are by the law permitted to incur this disadvantage: Brandt v. Commonwealth, 94 Pa. 290. It has been the custom for many years in the larger counties of the Commonwealth, where the volume of criminal business is great, to try several indictments charging misdemeanors against distinct individuals, growing out of the same transaction, with the consent of the parties, before the same jury and at the same time. This practice expedites the public business, saves the time of defendants and their counsel and has no tendency to deprive any accused of any legal right. We have considered this specification first, for the reason that it goes to the regularity of the whole trial. The twelfth specification of error is dismissed.

The first specification of error relates to the admission in evidence of declarations made by Norato, the alleged paramour of the appellant. The parties having elected to be tried together, competent evidence against one could not be excluded on the ground that it might prejudice the other. The declarations of Norato, made in the...