Commonwealth v. Tracey

• Decision Date: 12 October 1939
• Docket Number: 119-1939,120-1939,118-1939,117-1939
• Parties: Commonwealth v. Tracey, Appellant
• Court: Pennsylvania Superior Court

8 A.2d 622

137 Pa.Super. 221

Commonwealth v. Tracey, Appellant

Nos. 117-1939, 118-1939, 119-1939, 120-1939

Superior Court of Pennsylvania

October 12, 1939

Submitted April 24, 1939

Appeals from judgments of O. & T. and Q. S. Phila. Co., May Sessions, 1937, Nos. 602, 606 and 609, and Feb. Sessions 1937, No. 1126, in case of Commonwealth v. Harry F. Tracey.

Indictments charging defendant with robbery and other related offenses and indictment charging aggravated assault and battery. Before McDevitt, P. J.

The facts are stated in the opinion of the Superior Court.

Verdict of guilty on all bills of indictment. Defendant appealed.

Errors assigned, among others, related to various rulings on evidence.

Judgments reversed and new trials awarded.

Thomas D. McBride and Arthur W. A. Cowan, for appellant.

Ephraim Lipschutz, Assistant District Attorney, with him Charles F. Kelley, District Attorney, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, Rhodes and Hirt, JJ.

OPINION

Per Curiam

On November 16, 1936, three armed men entered the Methodist Episcopal Hospital in Philadelphia and at the point of a gun robbed an employee in charge, of $ 2,543.17 in her custody and control. Defendant was charged with the robbery and other related offenses. One Robert Roner also was charged with the same robbery in a separate indictment and, before the trial of defendant, had pleaded guilty but had not been sentenced. He was called as a witness by the defendant in this case and admitted that he had entered a plea of guilty. He then asked, "Must I be a witness?" to which the trial judge replied: "Well, you can exercise your own constitutional right. You can testify, or you can remain silent, as you please. Nobody can compel you to talk; but if you talk, tell the truth." There followed this colloquy between defendant's counsel and the court: "Q. Does your Honor rule that if he is asked questions he need not answer them? A. Nobody can compel him to answer. Q. That is your Honor's ruling, and those are your Honor's instructions to the witness? A. Yes." The witness then refused to testify. This ruling, excepted to by defendant, is the subject of the seventh assignment of error.

The provision of Art. I sec. 9 of the Constitution of Pennsylvania that one cannot be compelled to give evidence against himself applies to witnesses no less than the accused (In re Myers and Brei, 83 Pa.Super. 383) and by the Act of May 23, 1887, P. L. 158 sec. 10, 19 P. S. 631, also, a witness "may not be compelled to answer any question which, in the opinion of the trial judge, would tend to criminate him."

This Act of Assembly explicitly, and the constitution implicitly, contemplate the questioning of a witness to a point where the claim of privilege properly may be asserted, for it can not be assumed that the entire examination will relate to subjects which will elicit self-incriminating testimony: Com. v. Bell, 145 Pa. 374, 22 A. 641; Com. v. Klein, 40 Pa.Super. 352. "If asserted, it must be when the time has arrived, when the conditions are present that make the exercise of the privilege reasonably necessary to secure the protection intended to be conferred": Com. v. Bolger, 42 Pa.Super. 115, ibid 229 Pa. 597, 79 A. 113. The ruling of the court, therefore, was premature, for a claim of privilege had not been asserted and no questions had been put to the witness.

Though we assume that the witness' testimony would have related to the crime which he admitted by his plea and that he intended to claim privilege but was forestalled by the ruling of the court, the ruling is open to criticism on more serious ground. Remaining silent whenever it reasonably appears that the testimony of a witness may result in self-incrimination is a personal privilege, and since it is but a privilege, it may be waived: Com. v. Bolger, supra. A waiver may result from former acts, e. g., by admissions or the giving of testimony: Com. v. House, 6 Pa.Super. 92. And the privilege against self-incrimination when once waived cannot be reasserted: 3 Wharton Crim. Ev. 1144; Com. v. House, supra;

What the constitution and the Act of 1887 guarantee is the protection of a witness from incriminating himself. Where he has already done so by a solemn admission of guilt in a plea to the charge, he must be regarded as having waived his privilege, for any testimony he could give, necessarily would be less incriminating in degree than his absolute plea of guilty to the charge: State v. Knudtson, 11 Idaho 524, 83 P. 226. The defendant under the constitution was entitled to the benefit of this witness' testimony. The court could have protected him by restricting the examination to subjects within the scope of his waiver. The fact that judgment may not have been entered on the plea of guilt and sentence imposed, is of no moment. It is not the judgment of the court but the voluntary act of the witness himself which makes the waiver irrevocable. The seventh assignment of error must be sustained.

The ninth assignment of error complains that the court erred in failing to define the nature and essential elements of the crimes upon which the defendant was tried. The charge of the court on the subject contains only the following: "The defendant is Harry Tracey. He is charged in four bills of indictment as follows: In one, assault, being armed with an offensive weapon with an attempt to rob, assault together with other persons, weapon with attempt to rob, robbery, being armed with an offensive weapon, robbery, together with other persons, committing a crime of violence while armed in violation of the law; in another, entering with intent to commit a felony, committing crime of violence while armed in violation of the law; in another, carrying a concealed deadly weapon, unlawfully carrying a firearm without a license." Nowhere in the charge are there definitions of these offenses or instructions as to the elements essential to them.

Where the charge is inadequate merely, and a more comprehensive description of the crime with which a defendant is charged is desired, counsel should request it: Com. v. Newson, 277 Pa. 48, 120 A. 707; Com. v. Pacito, 229 Pa. 328, 78 A. 828; Com. v. Buoy, 128 Pa.Super. 264, 193 A. 144. But "it is...