Gray v. Commonwealth

• Citation: 101 Pa. 380
• Parties: Gray <I>versus</I> The Commonwealth.
• Decision Date: 20 November 1882
• Court: United States State Supreme Court of Pennsylvania

Page 380

101 Pa. 380

Gray versus The Commonwealth.

Supreme Court of Pennsylvania.

October 23, 1882.

November 20, 1882.

October 23d 1882.

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

ERROR to the Court of Oyer and Terminer of Westmoreland county: Of October Term 1882, No. 142.

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Gill (with whom was Latta), for the plaintiff in error.

S. A. Kline, district attorney, D. S. Atkinson and A. M. Sloan, for the Commonwealth, defendant in error.

Mr. Justice PAXSON delivered the opinion of the court, November 20th 1882.

This cause was argued here as upon a motion for a new trial, and two of the assignments of error are to the refusal of the court to grant it. We ought not to be called upon at this late day to say that it is not within the line of our recognized duties to correct supposed errors in the lower courts in this manner. Nor are capital cases an exception to this rule. We are not jurors, and are not called upon to weigh the evidence even when a human life is at stake, further than to say, when called upon to do so in an orderly manner, whether there is sufficient evidence to submit to the jury upon a particular question of fact. If the jury make a mistake the remedy is a motion for a new trial in the court below. If a new trial is refused where upon the evidence it ought to have been granted, and the judgment is affirmed here upon the law of the case, the only remedy is an appeal to the pardoning power. It is foreign to our duties to interfere in such cases, nor do we see that any practical good would result from our assuming such a jurisdiction. It is better for the administration of the criminal law that each department of the government concerned therein should confine itself to those duties which the law has assigned to it, and which long experience has shown to be wise and proper.

The foregoing remarks are made without any reference to the merits of this particular case, and seemed to be called for by the manner in which it was presented. I will now proceed to discuss briefly the questions of law presented by the record.

The principal points pressed upon the argument at bar were, 1st. That the corpus delicti was not sufficiently proved, and 2d. That in the absence of such proof evidence of the prisoner's confession was improperly received. The 2d and 5th assignments of error were intended to cover the first proposition, but they fall short of it. They merely allege error in admitting the testimony of H. A. Rudolph and Mary McCready stating their belief, and the grounds of it, that the skull and jaw bone, produced before the jury, were those of Mrs. McCready, the deceased, for whose murder the prisoner was indicted. That this evidence was competent is too clear for argument. The witness Mary McCready was a daughter of the deceased; the witness Rudolph knew her well; she had eaten at his table for over two years, and each testified to certain peculiarities of jaw and teeth, from which they had respectively formed the opinion above referred to. It was no answer to this to say that Rudolph was not a credible witness, and that Mary McCready was mistaken as to some of the teeth in the jaw. These were questions affecting the weight of the evidence and were entirely for the jury. Witnesses were called to impeach Rudolph; others were called to sustain him. The jury evidently believed him, and we cannot say they were wrong. It would be a serious thing to impute perjury to a witness for the Commonwealth in a capital case. A jury would hesitate to do so, while they might think he was mistaken, or that his opinion or belief of a fact was not founded upon a sufficient basis. It was argued that Mary McCready's testimony was unreliable; that in point of fact she proved the jaw was not her mother's, because she said her mother had no back teeth; only front teeth. What she did say was this: "There was no double teeth on either side above that I can remember, but there was some roots of decayed teeth back on each side . . . only decayed teeth, roots like, back." Now, the fact, which appears to be conceded, that the deceased had three back teeth, would not affect the competency of the testimony of the witness, and might not impair her credibility with the jury. It is certainly not a question for our consideration upon a writ of error.

The testimony referred to was not the only evidence of the corpus delicti. It had previously been shown that the deceased disappeared about the middle of February 1877 under circumstances which pointed strongly to her death by violence. She was a woman of about fifty years of age, in humble life, living with her son, a lad of about 12 years of age, in a small log cabin on the Kiskiminetas river in Westmoreland county. The little boy testified that he last saw his mother on the morning...