Opinion by
The facts surrounding the killing of Bertha Meyers were narrated in an opinion filed by this court, when a former appeal by the defendant from a conviction of first degree murder was considered (Com. v. Loomis,
One Shrope had been indicted for the same crime, and became a witness for the State at the first hearing of Loomis in 1918, at which time the former was examined. Subsequently, he entered the plea of non vult .contendere, and the sentence imposed was, as a result, set aside on appeal: Com. v. Shrope,
In the present case the Commonwealth offered in evidence the testimony -of Shrope taken at the first Loomis hearing, to show guilt upon the part of the defendant. This was admitted, against the objection that Shrope was insane when he first testified, and, on the further ground that the defendant was entitled to have the witness brought face to face with him in open court. It is not certain whether by this it was intended to insist that the Act of 1887, permitting the use of the former testimony, was unconstitutional, or that the witness must be produced unless proper proof of his incompetency appeared. Ordinarily, the party complaining on appeal of the admission of testimony will be confined to the specific objections made below: Roebling & Sons Co. v. American A. & C. Co.,
The learned court below received testimony to show the mental condition of Shrope when a witness in 1918, but overruled the objection to the admission of his former evidence because he was then insane, since such proof was not sufficient to disqualify, unless it further appeared that the disease was of a character, and so far progressed, as to render the witness incapable of understanding the nature of an oath, and of intelligently testifying as to facts he had observed. The principle involved was correctly stated, as will be hereafter noted; but the court fell into error when it failed to apply the
The notes of testimony of a witness at a former trial may be offered subsequently, where the same criminal issue is involved, “if he [has] become incompetent to testify for any legally sufficient reason properly proven” : Act May 23,1887, P. L. 158, sec. 3. Incompetency does not necessarily follow from insanity; “that is not enough per se to exclude him; but he must at the time of his examination be so under the influence of his malady as to be deprived of that ‘share of understanding’ which is necessary to enable him to retain in memory the events of which he has been witness, and give him a knowledge of right and wrong. If at the time of his examination he has this share of understanding, he is competent”: Coleman v. Com., 25 Gratt. (Va.) 875. “The general rule, therefore, is that a lunatic or a person affected with insanity is admissible as a witness if he have sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters which he has seen or heard in reference to the questions at issue; and whether he have that understanding is a question to be determined by the court, upon examination of the party himself, and any competent witnesses who can speak to the nature and extent of his insanity”: District of Columbia v. Armes,
The Commonwealth contends that the incompetency was here shown by the adjudication of Shrope’s insanity, and his commitment to the insane asylum, but proof of these facts was not sufficient. “The judgment of the court, finding one of unsound mind, is never conclusive that he remains so; much less is it conclusive that his
In the present case, there was no general finding of insanity under the provisions of the Act of June 13, 1836, P. L. 592. The adjudication was based upon section 66 of the Criminal Procedure Act; the purpose of which proceeding was merely to determine whether the prisoner was mentally competent to make a rational defense: Com. v. Simanowicz,
The only effect of the adjudication in Shrope’s case was to prevent his immediate trial, and, in itself, was not sufficient to show him incompetent, so as to justify the admission of the notes of the former trial without further proof as to the actual mental condition of the witness. The same conclusion would be reached though the finding were treated as prima facie evidence of insanity; for, as already noticed, proof of that fact is not in itself sufficient. If actual incompetency had been shown, then the former testimony could have been received, for an examination of the records shows an ample opportunity to cross-examine on the former trial, and, under such circumstances, it could not be said that the defendant was deprived of any substantial right: Com. v. Cleary,
Great harm may have been done in submitting Shrope’s story to the jury through the medium of his former testimony, rather than in person. Had a preliminary investigation been made to show the possibility of his appearance, notwithstanding his mental disturbance, it would have revealed, as appeared from the testimony of the superintendent of the hospital, that he was much better, and was at that time in a “state of remission” ; during which period, Dr. Lynch stated, he could give a “perfectly lucid statement.” It is further to be noted that there was admitted in evidence a statement concerning the crime made by Shrope while this trial was in progress. Before receiving the same, in answer to a question of the court, the alienist testified that, though Shrope was insane, he then had “ability to remember and describe what he [had] heard.” If this was true, the witness could not be said to be incompetent; and, if his evidence was desired,—and without it no conviction could have been had,—he should have been produced. Error was committed in the admission of the former testimony without the proof of Shrope’s present
Another complaint appearing upon the record requires consideration. It was the theory of the Commonwealth that the deceased was murdered in the perpetration of a robbery. A description of the occurrence appeared in the testimony of Shrope, who told of the forcible opening of a tin box by Loomis, illustrating at the first trial how it was held by defendant. At this second hearing, the former evidence of Shrope was admitted. A witness was called who detailed how Shrope had held the box, when explaining to the jury on the former occasion the manner in which it was grasped by Loomis. Upon it were several marks, one a finger-print at a point corresponding with the place designated as that at which it was held by Loomis. At the first trial, experts had identified the finger-print as that of the de-. fendant. When the case was called a second time, this position was abandoned, and the Commonwealth offered no evidence in regard to it, admitting that the mark was not that of Loomis.
The defendant was then permitted to show that the finger-print was not made by him,. not as furnishing proof of any substantive fact by which to prove or disprove the matter in issue, but solely to impeach the credibility of Shrope. This limitation was emphasized in the charge, and the correctness of the view taken by the learned court is now the subject of question, raised by the second and third assignments of error. The same proposition is suggested in the fourth, based on the answer to the ninth point of the defendant, but this request could not have been affirmed, as binding instructions were asked.
In a criminal case, a defendant cannot establish facts which awaken mere conjectures; his admissible proof must be such as is calculated to fairly raise a doubt as to his connection with the transaction. On the other hand, nothing connected with the crime should be excluded
A defendant should be allowed to prove a fact which would logically produce a doubt of his guilt in the mind of the jury. The remoteness of the testimony offered, or its significance in furnishing aid in deciding the fact to be found must, of course, be subject to the control of the court: Com. v. Ryan,
In the present case, the Commonwealth insisted that the killing was the result of a robbery. The tin box, which had been forcibly opened, was handled by someone, and around the rifling of it the case against the defendant was largely built. It was offered as part of the res gestae at the first trial, and the finger-print found thereon was proven to be that of Loomis; at the second trial it was in evidence, but the Commonwealth admitted that the mark was not that of the defendant. Loomis denied that he had handled the box or committed the robbery, and it was some corroboration of his story to prove that the finger-print was not made by him. This might have little effect upon the jury, in view of the presence of the other blurred marks upon the box, but the defendant was entitled to the benefit of any reasonable doubt it might raise. If weight is to be given finger-print testimony (State v. Kuhl (Nev.),
In view of the conclusion reached, the other assignments of error need not be discussed.
The judgment of the court below is reversed, and a venire facias de novo is awarded.