Kane v. Commonwealth
| Citation | 109 Pa. 541 |
| Parties | Kane <I>versus</I> The Commonwealth. |
| Decision Date | 20 April 1885 |
| Court | Pennsylvania Supreme Court |
Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT and CLARK, JJ. GREEN, J., absent
ERROR to the Court of Oyer and Terminer of Philadelphia county: Of January Term 1885, No. 415.
Edmund Randall (with whom was Thomas M. Keeley), for the plaintiff in error.—It is needless to quote the long line of authorities to establish the proposition that one crime cannot be given in evidence against a prisoner upon trial for a separate and distinct offence. See Swan v. Commonwealth, 8 Out., 218; State v. Lapage, 57 N. H., 245.
Notwithstanding the great wrong done the prisoner, by charging him with another and separate offence, an offence the law offers him no opportunity to defend himself against, yet the Commonwealth in the court below contended that they were justified in the indictment against the prisoner for murder, also of charging him with two unconnected crimes of manslaughter, for the purpose they claim, in case of his conviction of one crime of manslaughter the court would be enabled, in their discretion, to impose upon him a double sentence under Sec. 182, Revised Penal Code, Purdon, 372, Sec. 302. As authority for this position, Rauch v. Commonwealth, 78 Pa. St. R., 490, is cited.
It is submitted that the principle announced in Rauch v. Commonwealth, has no application to the case now in hand.
The Commonwealth claims that it was released from the necessity of proving by witness under oath that the James Kane on trial was one and the same person mentioned in the record in evidence, by the admission of such a fact by counsel for the prisoner.
In a criminal case, especially a capital one, counsel can neither agree to, nor admit anything: Mills v. Commonwealth, 1 Harris, 627; Peiffer v. Commonwealth, 3 Id., 468.
The law does not require positive evidence that the deceased knew he was dying; it may be inferred from his conduct, the nature of the wound, and the surrounding circumstances, nor is it necessary to prove expressions of an apprehension of death if his condition was such that he must have felt that he was a dying man: Roscoe's Crim. Ev., 30.
This remark of the deceased, that the prisoner had not shot him, was admissible upon other grounds than a dying declaration. It was part of the res gestæ: 1 Greenleaf on Ev., § 108.
George S. Graham, district attorney, for the Commonwealth. —Under the 182d section of the Penal Code, a double punishment is provided for the second conviction of manslaughter. The object to be attained by the insertion of the count for manslaughter, was to secure the necessary conditions to enable the court to impose a double punishment if the jury should fix the degree of guilt at manslaughter.
If the prisoner was powerless to make an admission concerning the identity, then there was simply a failure of proof on that point. If the prisoner had been convicted of the second offence of manslaughter, then the failure of proof might have been of great importance; but since the jury have found that the killing was a wilful, deliberate, and premeditated one, this failure of proof becomes unimportant.
The jury were carefully guarded by the court and counsel from considering the former conviction in making up their minds to the degree of guilt.
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