Fife, Jones, and Stewart v. The Commonwealth

• Decision Date: 01 January 1857
• Citation: 29 Pa. 429
• Parties: Fife, Jones and Stewart versus The Commonwealth.
• Court: Pennsylvania Supreme Court

Page 429

29 Pa. 429

Fife, Jones and Stewart versus The Commonwealth.

Supreme Court of Pennsylvania.

ERROR to the Oyer and Terminer of Allegheny county.

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T. Howard and R. P. Fleniken, for plaintiffs in error.—1. Cited 1 Arch. 176; Commonwealth v. Cook, 6 S. & R. 577.

2. An Act of Assembly (Purd. Dig. 470) cures defective returns: but in no logical or legal sense can it cure that which has no existence.

3. The objection to the confession is that Mr. Phillips, the jailer, in whose custody she was, stated to her, that if she would make a confession, she being a woman, the state would take her for a witness. In a short time she was taken before the mayor and made the confession; Phillips being in the office at the time. That the mayor cautioned her was not to the point, it was not calculated to remove the impression made upon her mind by Phillips's language. The mayor should have fully removed all hope: 1 Phil. Evi. 410 and the cases there cited; Commonwealth v. Harman, 4 Barr 270; 2 Russell 833, 836.

4. The language here used was quoted from Commonwealth v. Harman, 4 Barr 273. We submit, with all respect for the opinion of C. J. GIBSON, that it is not a proper instruction in a capital case. Although jurors are still men, they are to act as jurors; their private knowledge can have no weight. In the jury box they do not act "as men," but only as jurors.

5. We contend that a separate trial is or should be matter of right in a capital felony. In this case one of the defendants had made several confessions, differing as to who committed the murder. One of these implicating the two other defendants was read upon the trial. It was only evidence against the one who made it, and should not have been heard by the jury who were to try the other defendants. Once heard, the impression could not be effaced. But a joint trial virtually defeats the defendants' right of peremptory challenges. True, each defendant may challenge peremptorily twenty jurors, but the exercise of this right by each may destroy the benefit to all. They are allowed that a defendant may to that extent select his jury, and when tried alone, the object is attained.

6. This appears to us strange doctrine. Can it be, that if a defendant attempts to establish an alibi and fails, that the jury are to take as confessed all the allegations in the indictment? This we believe is not the law. It is part of a defence, and when proved is conclusive as to that point. If it fail, it admits nothing as to the guilt of the party who offers it. The utmost that could be claimed is, that it does not deny that the offence charged was committed: Commonwealth v. Kimball, 24 Pick. 366.

F. H. Collier, District Attorney, and Roberts and Wingard, for the Commonwealth.—1. As to the joint verdict of conviction, or acquittal on the whole charge against one or more defendants, Stark. Cr. Plead. tit. Ver. 378, 379, 387, 34 & 41; Ach. Cr. Pl. 34; 3 D. & E. 106.

2. It is too late after verdict to raise this objection; it is cured by verdict: Act 21 February 1814, Purd. Dig. 475; 5 Wh. 79; Jewell v. The Commonwealth, 10 Harris 100.

3. The language used by Mr. Phillips was, that if the Commonwealth would use any of them as a witness, he supposed it would prefer her to either of the others. She made no confession to Phillips. Her statement was to the mayor. She was repeatedly cautioned and advised that what she would say might be used against her. Where such is the case, the confession or statement is evidence against the party making it: 1 Phil. Ev. 410; Rex v. Hawes, 6 C. & P. 404; 1 Phil. Ev. 411; 4 Dall. 116; 4 Barr 271.

4. No argument will be attempted to sustain C. J. GIBSON: Commonwealth v. Harman, 4 Barr 272.

5. The refusal of the motion for a separate trial is not the subject of error. It is not matter of right, but discretionary with the Court: U. S. v. Collyer, Hawkins v. State, 9 Ala. 137; Whart. on Hom. Appx.; Commonwealth v. Manson, 2 Ash. 31; State v. Wise, 7 Rich. 9; State v. Loper, 16 Me. Rep. 293; People v. Vermilyeu, 7 Cow. 108, 383; Bixie v. State, 6 Ham. 86; U. S. v. Wilson, 1 Bald. 78; U. S. v. Gilbert, 2 Sumner 20; Bosler v. Commonwealth, 7 J. J. Marsh. 598; State v. Smith, 2 Iredell 402; People v. Howell, 4 John. 296.

6 and 7. On this point they referred to the charge of the court in connexion with the part assigned for error, and argued that taking the whole together, the jury could not have misunderstood the meaning of the court.

The opinion of the court was delivered by LEWIS, C. J.

The plaintiffs in error have been convicted of murder in the first degree, and this writ of error is brought to review the proceedings. We have nothing to do with the facts of the case. These have been passed upon by the jury under the direction of the court below. Our business is solely with the questions of law brought to our notice by the record, and by the bills of exception to the evidence and to the charge of the court. The Act of Assembly of the 6th of November, 1856, gives to every defendant on trial for murder or voluntary manslaughter a right to "except to any decision of the court upon any point of evidence or law;" and the act directs the exception to be "noted by the court and filed of record, as in civil cases." As this is the first case that has reached this court under the recent Act of Assembly, it may not be amiss to indicate the principles which, we think, ought to guide us in administering justice under its provisions. Before the enactment referred to, this court had no power to review the decisions of the criminal courts, in admitting or rejecting evidence, or in giving instructions to the jury. In these matters, those courts were essentially supreme. Hereafter, questions of evidence and instructions to the jury in the cases mentioned in the act, are to be reviewed here. But to what extent? and for what purpose? The extent is limited to the decisions of the court during the trial, on the points of evidence or law excepted to by the defendants, and noted and filed of record by the court. Beyond these, we have no right to touch a single decision of the court in admitting or rejecting evidence, or in charging the jury. The purpose is to do justice. It was certainly no part of the object of the legislature to obstruct the course of justice in capital cases, by opening the door to reversals upon mere technical and immaterial points in no way affecting the substantial merits of the case. The exceptions are to be "noted and filed of record as in civil cases," and, in our judgment, are to receive the same reasonable construction that they receive in civil cases. It is not sufficient that an abstract or technical error has taken place. The plaintiff in error must show that he excepted to it at the time, and they gave the court and the opposite counsel an opportunity to correct it. He must also show that he may have been injured by it, for an error which does him no harm furnishes him with no just cause of complaint. In all cases brought here for review, under the Act of 6th November, 1856, it will be the duty of the court to regard substance and not form, and to correct those errors only which appear to have a bearing upon the merits of the particular case, or may operate injuriously as precedents in other cases.

In this case the only bill of exception to evidence is that which relates to the admission of the written confession of Charlotte Jones. The purpose for which it was offered is not stated in the bill, nor are the grounds of objection set forth. It is therefore sufficient for the plaintiffs in error, if they can show any legal ground, to exclude it; and the Commonwealth may, in like manner, show that it was admissible for any legal purpose. The objection to it relied upon here is, that it was obtained by threats and promises. The only threats shown were statements of the jailer, in which he informed her that "she had not told the truth when she was examined on Saturday before the mayor;" "that the mayor and his police were in possession of facts directly contradicting what she had stated;" "that she, Fife, and Stewart had all been making statements, and that none of them agreed with each other;" "that Fife had related more truth than any of them." The bill of exception does not show whether these communications were made in good faith, or designed as an artifice to procure a confession. If the latter, they are like the artifice used to procure a confession from a prisoner by inducing him to believe that his accomplices had been arrested, which was held to be no ground for excluding the confession: Rex v. Burley, 1 Phil. Ev. 104, 2 Rus. C. L. 647. If the former, they are mere communications of facts and opinions which might be useful for the consideration of the prisoner in regulating her course. But in neither case can they be regarded as threats. They contain no intimation of an intention in any quarter, to punish or injure her if she refuses to confess.

The alleged promise consists of the remark made by the jailer, in the conversation referred to, that "if the Commonwealth would use any of them as a witness, he supposed it would prefer her to either of the others." This was no promise. There was not even an expression of opinion, that the Commonwealth would use either of them as a witness. There was nothing in it but the supposition of a preference by the Commonwealth, upon a contingency which was left as uncertain as it was before; and it was neither stated, nor hinted, that the preference would depend upon previously making a confession. If the prisoner had acted upon that hint, it is reasonable to suppose that she would have endeavoured to make terms with the district attorney, so as to be received as a witness. But nothing of the kind appears. On the contrary, she desired an interview with the mayor; and on being brought before him, she was repeatedly...