Ettinger v. Commonwealth

• Decision Date: 03 October 1881
• Citation: 98 Pa. 338
• Parties: Ettinger <I>versus</I> Commonwealth. Moyer <I>versus</I> Same. Erb <I>versus</I> Same.
• Court: Pennsylvania Supreme Court

98 Pa. 338

Ettinger versus Commonwealth.

Moyer versus Same.

Erb versus Same.

Supreme Court of Pennsylvania.

June 13, 1881.

October 3, 1881.

June 13th 1881.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

WRITS OF ERROR to the Court of Oyer and Terminer and General Jail Delivery of Snyder county: Of May Term 1881, Nos. 92, 93, 94.

COPYRIGHT MATERIAL OMITTED

A. H. Dill (with him T. J. Smith and J. M. Lynn), for the plaintiffs in error.—The Commonwealth's evidence falls under two classes: 1. That of an accomplice, Mary Hartley. 2. Evidence claimed by the Commonwealth to be corroborative of Mary Hartley's testimony. Under the latter class falls the testimony of witnesses relating to the finding a spot of blood on the ground outside of the house and to finding pieces of the earthen crock in the woods, and to the alleged confession by Ettinger. We objected to the admission of such testimony, not because it may not have been evidence for some purposes, but because it was admitted for the express purpose of corroborating Mary Hartley, upon whose testimony alone the Commonwealth relied to prove the corpus delicti. We contend that the corpus delicti must be distinctly proved before evidence of confession is evidence of guilt, and that it should have been established independently of Mary Hartley's testimony, unless her testimony as to the fact of the murder was corroborated by facts, directly connecting the prisoner with the crime. The testimony, the admission of which is complained of, was not corroborative of her testimony in this sense. The mere fact that a piece of crock was found in the woods and a spot of blood on the ground had no connection with the prisoner's alleged guilt. But the seemingly exact correspondence of physical appearance with Mary Hartley's description was calculated to mislead the jury on the vital point of the case — the corroboration of the witness's statement that the prisoners committed the crime. Evidence of corroboration should be of some fact existing entirely independent of the control of the witness, and not such as could be manufactured by a designing witness.

H. H. Grimm, District-Attorney, and A. W. Potter (Charles Hower with them), for the defendant in error.

Mr. Justice STERRETT delivered the opinions of the court October 3rd 1881.

ETTINGER v. COMMONWEALTH.

It was incumbent on the Commonwealth to establish the corpus delicti as well as the participation of the prisoner in the murder. A careful examination of the testimony returned with the record and referred to in the charge of the court leads to the conclusion that it was amply sufficient for both purposes. It was exclusively the province of the jury to consider the testimony, pass upon the credibility of the witnesses, and determine the truth of every material allegation on which the Commonwealth relied; and, inasmuch as it was fairly submitted to them in a clear and comprehensive charge, to which no exception is taken, it must be conclusively assumed that all the ingredients of murder of the first degree were fully proved to the satisfaction of the jury. The testimony of Mary Hartley, the principal witness for the prosecution, was direct and positive, both as to the commission of the crime and the prisoners' active participation therein. After giving a somewhat detailed statement as to how the parties came together on the night in question and what occurred on the way to Kintzler's she proceeded to state in her own way what took place there. The following is the substance of her testimony as to some of the more prominent facts. When they reached the fence east of the house the prisoner ordered her to remain there, saying that Kintzler had cross dogs, and if he was not in bed he might shoot. In company with his male companions he then crossed the fence, and after securing one of the dogs and tying him to a stake at the fence, he returned to the house. The witness afterwards heard a crash of broken glass and saw the prisoner making a fire on a large stone in front of the house. He then drew from under his vest a short-handled axe with which the door was forced open and they all rushed into the house. In company with Ellen Moyer the witness then crossed the fence, for the purpose of seeing, as she says, what was going on; and, on reaching the house she saw Mr. Kintzler lying on the floor near the stove and saw the prisoner strike Mrs. Kintzler on the head with a club, and knock her down, as she was attempting to escape. The box containing Kintzler's money was then secured, and, after dividing the contents by the light of a pine torch, they threw the box, together with some pennies, &c., back into the house. The prisoner then scraped some of the blood from the floor into a piece of crock, and after emptying it on the ground at the east side of the house, threw the crock into the woods towards Shrader's. The diabolical work was then completed by setting fire to the house, and all the parties withdrew. Such is the substance of the more prominent facts to which she testified, without attempting to give the language of the witness. Several witnesses were examined as to the condition of the premises next morning when the fire was first discovered. The house was then nearly consumed, and in the ruins several persons saw what they believed to be the remains of the old people. They were taken out and afterwards examined by experts and others who testified on the trial. The testimony on this subject is such as to leave no doubt as to their identity. It was also shown that blood was found at the east end of the house, and some of the witnesses testified in regard to the hole, under the floor, in which Mr. Kintzler kept his money-box, and also as to where the dogs were found. In addition to this, it was shown that the prisoner, while in the Middleburg jail, admitted to Joseph Wagner that he helped to kill the Kintzlers; and after they were taken to the Eastern penitentiary he made a more detailed statement to Wagner, in which he said the old woman came running out and he knocked her down, and one of his companions killed her; "that they took the money out, carried leaves in, and set the house on fire," &c. Other testimony tending to prove the guilt of the prisoner was submitted the jury, but it is unnecessary to dwell further on the facts of the case. They have been sufficiently brought to notice to show that if the witnesses were believed by the jury, the verdict, both as to the prisoner's guilt and the grade of the crime, was fully warranted. The only question that is not conclusively settled by the verdict is, whether any of the testimony complained of in the assignments of error should have been excluded. Unless there was substantial error in that regard it is very clear that the verdict and judgment should not be disturbed.

The first assignment relates to the admission of testimony to prove that at the morning after the alleged murder, a pool of blood was found at the east side of the house, where, according to the testimony of Mary Hartley, the contents of the broken crock had been emptied the night before. She had testified fully as to what had occurred on the night in question; among other things, that the prisoner scraped some of the blood into a piece of crock, and emptied it on the ground at the east end of the house, so that the people might think the Kintzlers had been killed outside the house, and thus the probability of a search for their remains in the ruins would be lessened. In connection with other evidence, the testimony complained of tended to show that the condition of things on the night of the alleged murder, as testified to by Mary Hartley, was correctly represented by her, and thus, to some extent, her extent, her statement of what had occurred was verified by witnesses who visited the premises early next morning. On behalf of the prisoner it was urged that, according to her own version of the transaction, Mary Hartley was an accomplice, and, therefore, unworthy of belief. This was denied by the prosecution, but still it was a question for the jury to pass upon, and, in view of the circumstances, it was competent for the Commonwealth to verify as far as possible her statement as to the res gestæ. This was properly done by the testimony of witnesses who came upon the ground immediately after the occurrence, and while the means of verification existed. In the case of an acknowledged accomplice, it is well settled that corroboration need not extend to the whole of his testimony. If it is shown that he has testified truly in some particulars, the jury may infer that he has done so in others. We think, therefore, that the testimony was not incompetent for the purpose for which it was admitted.

In his instructions to the jury, as to the effect of Mary Hartley's testimony, in case they found she was an accomplice, the learned judge gave the prisoner the full benefit of the law, and even more, by saying: "The practice is well settled that no conviction shall be had upon the unsupported testimony of an accomplice." This statement of the rule is not strictly correct, in theory at least. The degree of credit that should be given to an accomplice, is a matter exclusively within the province of the jury. It is competent for them to convict on his uncorroborated testimony, but the source of such evidence is so corrupt that it is deemed unsafe to rely upon it alone; and hence it is the practice of courts to admonish the jury of the danger and advise against a conviction on the testimony of an accomplice, unless he is corroborated to some extent, especially as to the person of the party he accuses: Watson v. Commonwealth, 28 Pittsburgh Leg. Jour. 89. The principle which allows the testimony of an accomplice to go to the jury for their consideration, necessarily involves the right to believe and act upon it. The general rule appears to be that, notwithstanding the admonition and...