Turner v. Commonwealth

• Citation: 86 Pa. 54
• Court: United States State Supreme Court of Pennsylvania
• Decision Date: 06 May 1878
• Parties: Turner <I>versus</I> The Commonwealth.

86 Pa. 54

Turner versus The Commonwealth.

Supreme Court of Pennsylvania.

January 8 and 9, 1878.

May 6, 1878.

January 8th and 9th 1878.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and TRUNKEY, JJ.

Error and certiorari to the Court of Oyer and Terminer and General Jail Delivery of Clearfield county: Of May Term 1878, Nos. 47 and 48. Certified from the Middle District.

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William A. Wallace (with whom was D. L. Krebs), for prisoner. —1st and 9th errors: Proof of illicit connection is no proof of motive. In absence of threats, jealousy, possession of secrets or a quarrel, it could only tend to prejudice the jury and permits them to imagine a motive. It is proof of an independent crime. There must be a connection between the two in the mind of the criminal: Shaffner v. Com., 22 P. F. Smith 60; 1 Greenl. Ev. 951. Motive cannot be imagined. It must result from facts proved. It is contrary to nature to deduce the motive for murder from the genesis of being, in the absence of proof of threats, jealousy or quarrels. This, in effect, proved prisoner's character by acts. This is illegal: People v. Jones, 31 California 566; People v. Bennett, 49 N. Y. 147; State v. Lapage, 57 N. H. 245.

2d error: Prisoner's statements as part of res gestæ admissible: U. S. v. Craig, 4 Wash. C. C. Rep. 729; State v. Swink, 2 Dev. & Batt. 9; Kirby v. State, 7 Yerger 259; McClenkan v. McMillan, 6 Barr 367; Tompkins v. Saltmarsh, 14 S. & R. 281; Potts v. Everhart, 2 Casey 498; Cattison v. Cattison, 10 Harris 276.

7th error: This part of the charge substitutes the "satisfaction" of a hearer not under oath for the higher measure of conviction necessary for an oath-bound juror. We all believe facts, as men, that we would not act upon as such in a capital case. A juror must base his finding upon the legal conviction of his intellect. The judgment of a bystander might adjudge preponderance, but the presumption of innocence is to be overcome. In such cases the intellect is appealed to through the medium of lawful proof. It must be legal, not moral conviction.

8th, 10th and 13th errors: The court here imposes the onus upon the prisoner. It in substance permits the Commonwealth to prove a prima facie case and then calls upon us to answer it. The 11th error is the assumption of a vital fact and is error: Musselman v. Railroad Co., 2 W. N. C. 105; 32 Leg. Int. 404; Harrisburg Bank v. Forster, 8 Watts 304; Parker v. Donaldson, 6 W. & S. 132.

12th error: The words are, "No innocent person is driven to manufacture evidence." No proof of such in any part of the case. The logic is, if Turner's alibi fails he manufactures proof. Therefore Turner is guilty. Failure to prove alibi no proof of guilt; Briceland v. Commonwealth, 24 P. F. Smith 463; State v. Collins, 20 Iowa 85; Great Western Railroad Co. v. Morthland, 30 Ill. 457; White v. State, 31 Ind. 262; State v. Josey, 64 N. C. 56.

Fourteenth, fifteenth, sixteenth and eighteenth errors. The court erred —

1st. He has held the prisoner in his proof of alibi to a higher measure of proof than he requires of the Commonwealth upon any vital fact or upon the whole case.

2d. He has held the prisoner to the same full measure of proof as not being at Williams's, 688 rods from the scene of murder, on Friday with a gun, as to his being at Wallaceton at the moment of the murder.

3d. He has required from the prisoner full proof of his own allegation from his own side as to the alibi, and failed to give them the whole evidence to weigh and consider upon that point 4th. In asserting the broad proposition that the burden of proof of the alibi was on the prisoner, and that he must fully and clearly establish it.

5th. In permitting the jury to consider the character of witnesses in the community, when no attack had been made upon their character.

As to the first proposition: the measure of proof applied to the facts relied on by the Commonwealth is stated thus: "It is necessary therefore that the Commonwealth should prove fully and satisfactorily to your minds the facts themselves, from which she asks you to infer the guilt of the prisoner." The same language is repeated, except that it is to be to their satisfaction. Again, the court gives the concrete thus: "You are first to take the case of the Commonwealth and see if she has proved by clear and satisfactory evidence the facts from which she asks you to infer the defendant's guilt."

Now, we turn to the other side; as to the alibi. "If this is established clearly and satisfactorily of course it is an end of the case." Again: "An alibi is a perfect defence where it is fully and satisfactorily established." Again: "If it is sustained or satisfactorily proven, of course he cannot have committed the murder."

One conclusion or the other forces itself from this comparison, namely: either the measure of proof to which the Commonwealth was held was too low, or the proof to which the prisoner was held was too high. They are not similar in requirement, and there is error here.

This burden ought not to lie, and, as the law is now held, does not lie, on the defendant.

Neither the humanity, the reason nor the authority of the law sustains the court.

The presumption of innocence shields the prisoner. He may sit still and demand proof beyond doubt of his guilt. What reason can be given, in accord with humanity, for changing this rule and destroying this presumption, when he tries to show the physical impossibility of his presence? It is often the only refuge of innocence. The jury, under instructions, may be safely trusted with the legal scrutiny of the evidence. It is not sustained by reason. The allegation of the indictment is "he did then and there kill." This is a vital part of the proof of the Commonwealth. It is traversed by the plea of not guilty. Alibi is a defence and not a plea. It confesses nothing. It avoids nothing. It does not admit the killing either "then or there." It simply says: You must prove this charge; if you do prove it, I am not guilty for I was elsewhere. It is not an affirmative defence. It is a denial of the charge "you did there kill." There can be no such thing under the law as an affirmative defence to the gist of a crime, which will shift the burden of proof from the Commonwealth to the prisoner. If alibi be such, it is an anomaly in criminal jurisprudence. The defences of insanity, provocation, necessity, and former acquittal or conviction are all in excuse or justification, and each of them is an admission of the essence of the offence — the very fact of killing. Alibi, on the contrary, if narrowed to its lowest conception, distinctly traverses this vital element of the crime — he did there kill. All of the authorities agree that the Commonwealth, upon the whole case, must prove every essential of the crime beyond a reasonable doubt. They also agree that the prisoner makes no admission of guilt by setting up an alibi. If those be sound law, and they are undoubtedly humane — it necessarily follows that the presumption of innocence is not dethroned, that the burden of proof rests, as to this averment, upon the Commonwealth. If this be not true, we have the incredible result that a law based upon humanity, logic and common sense, holds the prisoner innocent until he is proved guilty, but as to the vital requisite to the crime it requires him to prove his innocence. The burden of proof in the sense used by the court below — the affirmative of the issue as to the material averment, "he did, then and there kill," never shifts from the Commonwealth. The character of the proof to support this defence, and the measure of that proof may well be what this court and others of like enlightened character hold them to be — carefully scrutinized and preponderating proof, but these do not justify the charge of the court nor sustain the illogical position that the burden of proof is upon both the Commonwealth and the prisoner as to an essential element in the crime.

The charge cannot be sustained upon authority. We mean by this, that the broad declaration, that "If a defendant offers to show an alibi, the burden is upon him, there he becomes the affirmant, he becomes the actor, and the law requires him to prove to your satisfaction that his allegation of being somewhere else is true," is not warranted in law. If for no other reason, it is unsound, because it imposes the duty of satisfying the jury of its truth upon the prisoner, and denies him the benefit of this proof in qualifying all of the proof on this subject, so as to enable the jury to determine whether a reasonable doubt existed. He is held to the task of proving it to their satisfaction — of proving it as a truth. But we place the case here upon other ground, as well as upon this. The burden of proof is not upon the prisoner; he does not become the affirmant — the actor. The burden is still upon the Commonwealth. The jury must carefully scrutinize the evidence upon the alibi, and if there be a preponderance of the whole evidence from which they are satisfied the alibi is established; or if, taking this in connection with all of the other proof in the cause, a reasonable doubt is raised, they must acquit. The charge, as a whole, asserts the doctrine that the prisoner must prove the alibi affirmatively if he fails in doing so, that failure is to be considered as a fact against him; and if, upon the whole case, including that fact, there is satisfactory proof of the defendant's guilt, they should convict him.

Authorities need not be quoted for the propositions: —

That it devolves upon the Commonwealth to prove all of the material allegations in the indictment; or,

That, if, upon the whole evidence, the jury have a reasonable doubt as to the defendant's guilt, they must acquit.

Even where a prima facie case...