143 A. 904 | Pa. | 1928
Argued September 24, 1928. This case involves appeals by three defendants, James Parker, Raymond Parker and John H. Wilson, who, with Joe B. Ware, were indicted for the killing of Pelegrino Cocco, in the City of Erie. All were tried at one time. The appellants were found guilty of murder of the first degree, and the jury fixed the death penalty for them. Ware, a mere youth, was found guilty of the same degree of crime, but in his case the penalty was fixed at life imprisonment, and he did not appeal.
Briefly, the facts are: The deceased was found dead in his dwelling house on the morning of November 21, 1927, under circumstances which indicated that he had been murdered while a burglary and robbery was being perpetrated. Late in the next month, defendants John H. Wilson and James Parker, together with one John W. Christy, were arrested for the robbery of a street car conductor in the City of Erie. This last mentioned offense occurred after the alleged murder and had no connection with it other than through the fact that a pistol stolen from Cocco, at the time of his slaying, was used in the perpetration of the subsequent robbery. Confessions by Wilson and James Parker to the Erie chief of police covered the commission of both the Cocco homicide and *148 the robbery of the street car conductor; they implicated in the former crime, as coparticipants, Raymond Parker and Joe B. Ware, both of whom were subsequently arrested and made separate confessions.
The controlling points for decision, raised upon this appeal, are: (1) Whether or not it was reversible error for the trial judge to hear defendants' motion for a new trial, sitting alone, instead of convening with his colleagues as a court in banc. (2) Whether or not it was proper to admit in evidence those portions of the confessions containing admissions to the effect that, at the time of the robbery of the street car conductor and of another hold-up, the defendants possessed a pistol which was identified as property stolen from Cocco, the murdered man. (3) Whether or not it was reversible error to receive in evidence, as part of one of the confessions, a notation therein that the declarant identified the before mentioned pistol as his property, without recording his actual words of recognition or particularizing how he made the identification.
Under Equity Rule 71, all motions for new trials must be heard by the court in banc: Stone v. New Schiller, etc.,
John H. Wilson's confession begins with an account of the street car robbery, and proceeds to a point where, on the production of a pistol of distinct model and number, he admitted it to be the one used by him in the commission of that crime. Continuing, he confessed to participation in the robbery and murder of Cocco; finally, he admitted that the pistol used in the street car hold-up was taken from Cocco on the night when he, Wilson, and his three companions had disarmed their victim and murdered him. The confession contains a scant reference to still another hold-up, in which this pistol also figured, mentioned at the beginning of the next paragraph; but on Wilson's denial of participation, this subject was dropped.
The statement of Raymond Parker contained a somewhat similar confession, opening with a reference to another hold-up or robbery at which the pistol previously stolen from Cocco was used, and leading up to the identification of this weapon as the one he had seen in the hands of his brother James Parker at the time of the last above mentioned hold-up.
As to James Parker, one of the police officials who questioned him at the time of his confession, testified that, in the course of that confession, Parker had admitted participating in the street car hold-up. This witness said also that the confession had been taken down in shorthand by another witness; these stenographic notes, testified to by the last mentioned witness, disclose that when James Parker was shown the weapon used in the street car robbery, he said it was the pistol with which Cocco had been killed.
Other uncontradicted witnesses, in addition to the defendants, identified the pistol in question as the property of Cocco, and still others testified to seeing it in the possession of defendants after the date of the homicide. *150
All of the evidence relating to other crimes than the one for which defendants were on trial went upon the record, as part of the confessions, over objections by defendants' counsel. The trial judge, however, took care, in his charge to the jury, to limit the applicability of each confession to the particular defendant who made it, and warned the jurors "to disregard that portion of [each] confession. . . . . .relating to another offense."
Appellants' chief complaint is that the court below admitted the confessions as a whole, without excerpting and keeping from the jurors the portions dealing with other crimes, which defendants either expressly or in effect asked the trial judge to eliminate from their consideration.
Appellants, combating the admission of these confessions, rely largely on Com. v. Jones,
Although it is a well known rule of evidence that, in the trial of a defendant for a crime, no other independent, unconnected offenses committed by him are admissible to establish the fact of the commission of the crime on trial, yet where there actually exists an evidentiary connection between the two crimes, so that the proof of one tends to prove the other, they are no longer independent and unrelated, and it is competent to introduce evidence of the one in the trial of the other: Com. v. Weiss,
In thirty-three American jurisdictions, including Pennsylvania, the common-law procedure by which the punishment of defendants convicted of the highest degree of homicide was assessed, has been changed in a material respect by almost uniform legislation. Statutes along the line of our Act of 1925 have been enacted, investing the jury with the heretofore exclusively judicial function of determining the punishment to be administered: see "Recent History and Present Status of Capital Punishment in the United States," by R. T. Bye, volume 60, American Law Rev., p. 905. Although several of these statutes have been in force over half a century, it is apparent, as held in Woods v. The State,
Defendants call attention to the fact that, aside from this enlargement of the functions of the jury by conferring on it power to assess the punishment, its field of work is still limited to fact finding; hence, say they, even under these enlarging statutes, the practice still should be to confine the evidence, as in the past, to matters throwing light on disputed issues of fact necessary to be solved in order to determine the question of guilt or innocence of the accused; and it must be conceded that the only discovered relevant decision so rules: People v. Witt,
Here other offenses than the one on trial were acknowledged by the defendants at the same time as and in course of their confessions of that crime, and the question concerns the admissibility in its entirety of such a confession. Moreover, on this appeal, counsel for defendants frankly state that, though the pleas were "not guilty," the "entire defense was in substance a plea [to the jury] for mercy" in assessing punishment.
In at least one jurisdiction, under certain circumstances, evidence of the commission of offenses other than the one on trial is admitted by the court and considered by the jury after a verdict of guilty is rendered and before other elements affecting the punishment to be administered are considered; but this practice prevails under statute so providing (see Wigmore on Evidence, volume 1, pp. 426-7, section 196, part 2a and note), and where, we take it, there is no announced public policy rule against piecemeal verdicts. In Pennsylvania, however, in the absence of a statute so providing, we do not permit jurors to render piecemeal verdicts; all their conclusions *154
must be comprehended in a single verdict: Panek v. Scranton Ry. Co.,
As to point (3), concerning the notation in the confession of Wilson of his identification as his property of the pistol with which the murder was committed, no objection to its admissibility on the ground now stated —, that it contained a mere conclusion of the stenographer —, was made at the time this evidence was offered; nor was any motion subsequently made to strike it out. Furthermore, the point now insisted upon was not urged in the court below, even in the motion for a new trial. Under these circumstances, and considering the fact that the record contained other evidence of such identification, the rule applies that, when evidence objected to on inadequate grounds is admitted, an appellate court will not consider adequate grounds urged for the first time on appeal: Brown v. Kittanning Clay Products Co.,
The fact that the pistol which defendants used in the murder of Cocco and subsequently in the other hold-ups mentioned in the evidence, was taken from the possession of Christy, who was with defendant Wilson on the *156 night of the latter's arrest, is of no controlling significance, for there is ample evidence from which the conclusion could be drawn that the weapon passed from Wilson to Christy, on the evening in question, after the street car robbery.
No other points in the case call for discussion; we have considered all of any importance, and find no reversible error.
The judgments appealed from are affirmed; the record to be remitted to the court below for purposes of execution.