Hopkins v. The Commonwealth

• Decision Date: 01 January 1865
• Citation: 50 Pa. 9
• Parties: Hopkins versus The Commonwealth.
• Court: Pennsylvania Supreme Court

Page 9

50 Pa. 9

Hopkins versus The Commonwealth.

Supreme Court of Pennsylvania.

ERROR to the Oyer and Terminer of Philadelphia.

David Paul Brown and John A. Owens, for plaintiff in error, argued, as to the first point, that the language of the offer of the district attorney, which is fairly involved in this discussion, was entirely irregular and illegal; leading and instructive to the witness, and calculated, through the very second witness examined by him, to affect the prisoner, by proving that he (the prisoner) was malignant in his conduct and character at that time; that the answer made by the witness did not support the time, fifteen minutes, fixed by the district attorney, but denied any threats at that time, saying, I heard the prisoner make no threats against McMarity, and fixes the threats an hour before the fight, without stating what was their cause, or to whom they referred. The evidence separately and in its connection with the offer was illegal, and was calculated to prejudice the rights of the prisoner.

That the rule to be applied to this question is, that distinct crimes from that laid in the indictment, as a general principle, cannot be proved against a prisoner, as the ground of a presumption

of his having committed the offence of which he stands charged. In other words, that the evidence of such other offences must be connected not only in point of time, but in motive, with the individual injured: 1 Wh. C. L. § 824.

It is not allowable to show upon the trial of an indictment that the prisoner has a general disposition to commit the same kind of an offence as that for which he stands indicted: Phil. Ev.; State v. Kenton, 15 N. H. 169; Regina v. Oddy, 4 Eng. L. & Eq. 572. Yet this is exactly the tendency of the evidence of Galbraith, to which we excepted. Its whole scope and purport was to show a tendency or disposition on the part of the accused to commit the same kind of an offence as that for which he stood indicted. See State v. Barfield, 7 Iredell 299.

The prosecution had no right to introduce general character or general conduct (which are convertible terms in the law, Zeiler v. Muckle, 12 Harris 408) at an antecedent time, for the purpose of affecting the rights of the prisoner, and adding probabilities or liabilities to the charge.

The question was put at the very introduction of the cause, and before the defendant had examined a single witness. It was not to rebut any proof of the prisoner's, with regard to character — and even if it had been it would be perfectly inadmissible, both in regard to form and substance — it was a leading question, and it appealed to the witness's individual opinion as to the prisoner's character. It was addressed to the prejudices and not to the judgment of the jury, and no doubt contributed largely to produce that verdict of which we now complain.

It is not enough to say that the reception of this evidence, which has been wrongfully admitted, could have made no difference; you should have taken care not to put in bad evidence. "The alleged unimportance of a piece of evidence improperly rejected or admitted is no ground for refusing to send a case down for a new trial:" Baron De Bulger v. Farr, 5 N. & M. 618.

In this case the improper admission of this testimony, elicited by the equally objectionable form of an offer and interrogations which suggested the reply while asking the information, cannot fail to have operated against the prisoner in the estimation of the jury. The vapouring of a drunken man was mistaken for malice; an isolated passage from his incoherent raving during the frenzy of intoxication, for premeditation. For there was no other fact or fancy that could lead even the most credulous mind to a suspicion of deliberation. All the previous evidence negatived the assertion of such a thing. The homicide was committed in the excitement and turmoil of an affray.

II. The second specification of error stands upon a technical basis, but still has its weight, arising as it does in the case of a man who certainly was not rightfully convicted of murder in the first degree upon the evidence adduced against him. The finding of the grand jury should be recorded by the clerk, and an omission in that respect cannot be supplied by an endorsement of the foreman, nor by the recital in the record that the defendant stands indicted, nor by his arraignment, nor by his plea of not guilty. It cannot be intended he was indicted. The recording of the finding of the grand jury is as essential as the recording of the finding of the petit jury: 1 Wh. C. L. 501; Commonwealth v. Cawood, 2 Vir. Cas. 527; State v. Glover, 3 Iowa 249. So that this error also, while perhaps not bearing as directly on the merits as that contained in our first specification of error, is also a reason why this writ of error should be sustained.

William B. Mann, District Attorney, for the Commonwealth.

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

The argument in this case was not limited to the single exception to evidence which appears upon the record, but extended itself to the construction of the Act of 1794, in respect to the distinction between murder in the first, and murder in the second degree. The court below has very properly sent up all the evidence, in order that we might the better judge of the admissibility of the one piece excepted to, and counsel improved the opportunity to argue at large that upon the whole evidence the prisoner ought, at most, to have been convicted only of murder in the second degree, although the record exhibited no prayer for a direction to that effect, and no exceptions to such instructions as were given.

Upon such a presentation of the case it becomes necessary that we define with precision our appellate jurisdiction in capital cases, lest on the one hand we withhold from the accused what may seem to be his rights in this court, or on the other hand we be betrayed into the decision of a very grave question of law, which, in no proper sense and legal form, has been submitted to us.

By both the Acts of Assembly of 22d April 1722, and 16th June 1836, Purd. 928, appellate jurisdiction was conferred upon this court to hear and determine all manner of pleas, plaints, and causes, which should be removed or brought here from the inferior courts, and to examine and correct all manner of errors of the justices and magistrates in their judgments, processes, and proceedings, as well in criminal as in civil pleas or proceedings, and according to the old Act of 1722 to affirm or reverse; but according to the Act of 1836 to affirm, reverse, or modify the judgments, decrees, or proceedings thus brought up. This power to modify final decrees and judgments is constantly exercised in civil cases, and was exercised in a criminal case in Commonwealth v. Daniels, 7 Barr 375.

The "plaints, pleas, causes, proceedings, judgments, and decrees," mentioned in the Acts of Assembly, are the ordinary proceedings of what are technically called courts of record, and the writ of error, which is the common law instrument of removing the record of one court into a court of higher jurisdiction, lies only upon matters of law arising upon the face of the proceedings. Hence, therefore, the appellate jurisdiction conferred by the above-named Acts of Assembly was limited necessarily to the correction of errors appearing of record. By the forms of the common law the incidents of the...