McLain v. Commonwealth

• Decision Date: 03 January 1882
• Citation: 99 Pa. 86
• Parties: McLain <I>versus</I> Commonwealth.
• Court: Pennsylvania Supreme Court

Page 86

99 Pa. 86

McLain versus Commonwealth.

Supreme Court of Pennsylvania.

November 1, 1881.

January 3, 1882.

November 1st 1881.

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

ERROR to the Court of Oyer and Terminer of Allegheny county: Of October and November Term 1880, No. 64.

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Thomas M. Marshall (with him H. H. McCormick, W. D. Moore, and William Scott), for the plaintiff in error.—The stenographic record of Cox's testimony at the coroner's request should have been admitted. Cox was there examined as a witness for the Commonwealth in the presence of the accused. At the time of the trial, the witness was ill and unable to attend. Under several British statutes, believed to be in force in Pennsylvania, as well as at common law, the coroner, as a high judicial officer, takes the evidence at his official inquest with fairness, "whether against or in favor of the party charged:" Stat. 3 Henry VII. cap. 1; 4 Edw. I. cap. 2; 1 & 2 Phil. and Mary; 2 & 3 Phil. and Mary; Robert's Dig. p. 106. The question has been virtually decided in this state in Brown v. Commonwealth, 23 P. F. Smith 321, upon which we rely. The facts there are similar to this case, except that the examination was before a magistrate, and the witness was dead at the time of the trial; but these differences are shown by the opinion of READ, C. J., in that case to be immaterial. The reason of the rule is the same in case of sickness as of death; the former is as much the act of God as the latter. When the reason exists, the rule exists. The English authorities support the proposition that the testimony of witnesses taken before the coroner on inquests, may be read in evidence on a subsequent trial in court, where by the act of God the witness is unable to be present, whether by reason of death, sickness or inability to travel; and the rule is the same in civil and criminal cases: Powell on Evidence, *254; Rex v. Morly, 1 Levinz 180; 2 Keble 18, 19; Kelyng's Rep. 55; 2 Hale 284; 2 Hawkins P. C. 605. The rule is the same in Pennsylvania, and in the United States: Brown v. Commonwealth, supra; Emig v. Diehl, 26 P. F. Smith 359. We proved the accuracy of the written testimony by the short-hand writer, who took it down. The fact that he was not specially employed by the coroner is, in the absence of circumstances tending to impeach its accuracy, immaterial.

The court erred in admitting the testimony of the existence of stains of human blood on the shovel and on the coat of the accused. The testimony of all the experts except one was concurrent that under the circumstances human blood could not be distinguished from blood of other mammalia by any scientific test, much less by the naked eye. This is sustained by all the medical and scientific text-books: Taylor's Med. Juris. 307; Beale, The Microscope in Medicine (Ed. 1878) 286, 267; 10 Cent. Law Jour. 184, 185; Whart. & Stille Med. Juris. (3d Ed.) 755; Woodman & Tidy, Forensic Medicine and Toxicology (Ed. 1877) 516, 517; Amer. Monthly Microscopic Journal, April 1880; Dalton's Physiology (6th Ed.) 253. The court also erred in its comments in the charge on the scientific testimony, and in charging: "I undertake to say that a jury may, if satisfied of its truth, lawfully convict upon the proof of the existence of human blood by the testimony of unlearned observers." This is a dangerous doctrine, where human life is at stake.

The court further erred in that portion of its charge relating to motive; in argumentatively putting interrogatories to the jury; in depreciating and subordinating the circumstantial evidence in favor of the defendant's theory that the killing took place at the river, and not at the stable: viz., the absence of all trace of blood at the stall or stable, where Gross swore the killing took place; the finding of the hatchet, and also the cap and dinner bucket of the murdered boy at the river, in failing to notice the testimony of the surgeons that the wounds were such as could hardly have been made with a shovel, but could well have been made with a hatchet; and generally in failing to present the defendant's case in a fair and impartial manner, while that of the Commonwealth was presented forcibly, the court even suggesting reconciliation of contradictions apparently irreconcilable with the truthfulness of Gross's story. We ask the especial attention of this court to this case in view of the subsequent acquittal of Samuel Gisal on the same indictment, and on precisely the same evidence on behalf of the Commonwealth, except that the defence had the advantage of the presence and testimony of James Cox, the exclusion of whose testimony in our case is insisted on as grave error.

M. Swartzwelder (John S. Robb, District Attorney, with him), for the Commonwealth, defendant in error.—The testimony of Cox at the coroner's inquest was properly rejected. It was not taken by or for the coroner, nor adopted nor certified by him. It was taken by a volunteer, as he stated, "for whom it may concern." At the inquest there was no accused — there was no accuser. The witnesses did not appear for either side, but in the interests of public justice. Hence, there was no opportunity for cross-examination, which is a test of the subsequent admissibility of depositions. An inquest is a common law proceeding by virtue of power vested in the coroner long before any statute. The British statutes referred to were passed not with reference to testimony taken at a coroner's inquest being read at a subsequent trial of the prisoner, but they related to its being used for the "bailment of the prisoner." It is said that these statutes are substantially in force in Pennsylvania, but this cannot be so, as the parts of the statutes relating to bailment of the prisoner have been supplied by our own statutes, and other portions of the British statutes relate to matters which do not exist here, e. g., inquests in cases of rape, deodands, etc. The British statutes, if ever in force here, are now obsolete by non-user. The authorities relied on, both English and American, do not sustain the contention. In every case, the witness whose testimony given at the coroner's inquest was admitted on a subsequent trial was dead. Although the resolution of the Judges, on the trial of Lord Morly, as reported in Kelynge, 53-55, was, that the testimony taken before the coroner of witnesses who were "dead or unable to travel" could be read on the trial, yet it appears by the reports of the trial of Bromwich, as aiding and abetting Lord Morly, Levinz 180, and 2 Keble 19, that the witnesses referred to were dead. So, also, the witness was dead in Brown v. Commonwealth, 23 P. F. Smith, 325; and United States v. Macomb, 5 McLean 286. Emig v. Diehl, 26 P. F. Smith 359, was an ejectment, and clearly not in point. Such testimony of an absent sick witness has been refused even in a civil case: Harrison v. Blades, 3 Campbell 457. The extreme limit reached by any of the authorities is thus stated in Queen v. Scaife, 1 Moody & Rob. 551; "If a witness is dead or insane, or where there is no probability of his ever being able to attend, or where he is kept away by the prisoner, his deposition, if properly taken, is admissible, but other absences are insufficient ground to admit the evidence." See also, 1 Whart. on Evidence, § 179; Rex v. Savage, 5 Car. & P. 143; People v. Restell, 3 Hill 290; Regina v. Austin, 1 Dearsley Crown Cas. 612. If the rule, as contended for, governed in criminal cases, it would be a temptation to perjury before the coroner, there being no cross-examination, and to feigned sickness during the trial.

It is charged that the court erred in admitting the evidence relating to blood stains, and in charging that such stains might be proved by other than chemical, microscopic or spectroscopic tests. This ruling follows the decision in Gaines v. Commonwealth, 14 Wr. 319; and if this were not so, what becomes of all the convictions, on this ground, before these modern scopes were invented?

Mr. Justice MERCUR delivered the opinion of the court, January 3d 1882.

All the specifications of error argued, were properly presented under a few heads, and will now be so considered. The first is to the rejection of the testimony given by James Cox before the coroner on the inquest. Cox was shown to be ill, and although convalescent at the time of the trial, yet unable to attend court.

It is undoubted law that the testimony of a deceased witness given on a former trial between the same parties in the same issue, and duly proved, is admissible in a civil case. The authorities are not in entire harmony as to the application of the same rule in criminal cases. The preponderance of authority is that the rule does so apply, if the witness be dead: 1 American Crim. Law. § 667; 1 Whart. Law of Ev. § 177; Commonwealth v. Richards, 18 Pick. 434; Crary v. Sprague, 12 Wend. 41; Brown v. Commonwealth, 23 P. F. Smith 321.

The witness Cox was not dead, nor was his sickness of a character imposing permanent disability. On the contrary, he was recovering from typhoid fever, so there was reason to suppose he would be able to attend on some future day to which the trial may have been postponed. In civil cases, the recognized rule in this state, is to admit the testimony of a witness, unable to attend court, without regard to the permanency of his sickness; yet we are not aware that the precise point has ever been decided by this court, in a...