41 Pa. Super. 326 | Pa. Super. Ct. | 1909
Opinion by
The defendant was indicted for perjury in swearing before a magistrate of Philadelphia, in the case of Commonwealth v. Samuel Abrams, charged by her with desertion and nonsupport, first, that she was married to Abrams on September 4, 1906, by the Rev. George Lewis Wolfe at Wilmington, Delaware, second, that a certain man then and there produced was not Ellwood Wilson, her first husband.
As the record of that-proceeding was admissible as inducement, though not to prove the falsity of the testimony assigned as perjury, it is not apparent that there was reversible error in refusing to withdraw a juror because the assistant district attorney stated in his opening that he would prove that the magistrate dismissed the proceeding. The case differs substantially from Fisher v. Penna. Co., 34 Pa. Superior Ct. 500, for there the objectionable remark of counsel related to action of the magistrate that could not be proved for any purpose. Of course, the record could not be used legitimately for the purpose of showing the opinion of the magistrate as to the truthfulness of the testimony in order to influence their judgment upon that question, but it does not satisfactorily appear that it was permitted to be used for that purpose. Therefore, the first and fifth assignments are overruled.
The remark of the assistant district attorney, made in the presence of the jury, to the defendant when under cross-examination, to the effect that her turn to go to jail had come,
The defendant was cross-examined as to a criminal case or cases she had instituted against persons named Bass and' O’Neil, and several questions were asked her as to the testimony she had given in those cases and as to the statements she had made to the assistant district attorney at the time of the trial. The evident purpose of this cross-examination was to lay ground for contradicting her testimony in the present case by the testimony she had given and the statements she had made in'the trial of the cases she had referred to. After having been cross-examined at some length as to these matters, she was interrogated as to her recollection as to what happened at the trial, and replied that in some things her recollection was good but that she could not recollect everything. Thus far there is no objection raised to the cross-examination. But then, she having been interrogated as to who presided at the trial and having stated that it was Judge Pennypacker, the
Under assignments six to seventeen, inclusive, the appellant’s counsel argues the question of the admissibility, in the presentation of the commonwealth’s case in chief, of certain portions of the testimony given by the appellant when under cross-examination at the hearing before the magistrate of the desertion and nonsupport proceeding against Abrams. Neither the disconnected extracts from the official report of the trial printed in the appellant’s paper-book nor the record sent up to this court, shows that this specific question was distinctly raised in the court below. Going to the original record, we find that one of the court stenographers was present at the hearing before the magistrate and took stenographically the testimony the appellant gave at that hearing; that he had his stenographic notes transcribed by typewriting in longhand, he dictating to the typewriter from his notes and carefully comparing them with the copy; that some months afterwards he destroyed his stenographic notes, they not having been taken officially; and that he was able to testify and did testify, having the typewritten transcript of the testimony before him, as follows: “ Q. Does the testimony that you have identified represent actually what she swore to under oath and all that she swore to? Q. The words that came from her mouth? A. Yes, sir.” He further testified that independently of his transcribed notes, he had a recollection of some of the matters testified to but not as to all. Having laid these grounds, the assistant district attorney proposed, for the purpose of saving time, that the transcript be admitted and incorporated in the official report of the trial, without reading it at length, as the witness’s answer to this question: “Will you kindly tell me, refreshing your recollection by the notes of testimony that you took and transcribed, what this woman swore to at the hearing?” At first this was assented to by the defendant’s counsel, but after some further cross-examination he withdrew his assent and objected upon the ground that the notes and the transcript had not been properly compared and that the witness had no knowledge outside the notes. Thereupon,
In the twenty-second'assignment complaint is made of the following action of the court: The defendant’s counsel, for the purpose of identification, exhibited to Abrams, when under cross-examination, certain letters purporting to bear his signature, and before they had been offered in evidence, the court, at the request of the assistant district attorney and against the protest and objection of the defendant’s counsel, impounded them in order that the commonwealth’s expert might examine them. Whether or not this action of the court before the letters had been offered in evidence was strictly regular, particularly in view of the offer of the defendant’s counsel to show them to any expert and his undertaking to offer them in evidence at the proper time, need not be discussed. Be that as it may, it has not been made clear that the action was harmful to the defendant’s case. It was not as if the.
In the recent case of Com. v. Racco, 225 Pa. 113, it was held that where the accused takes the stand on his own behalf, he may be asked on cross-examination, in order to test his credibility, whether he had not been convicted and sent to prison for other criminal offenses; and if he answers no, it may be shown by other witnesses, for the purpose of contradicting him and impeaching his credibility, that he had made declarations to the effect that he had been convicted and sentenced for such crimes. In the same case the court said: “ In Buck v. Com., 107 Pa. 486, the question asked the witness was held to have been improper because if he had been convicted of embezzlement, the proper evidence of that fact was the printed record. We do not now approve what was there said, and, if it is to be regarded as an expression of the law, it is overruled.” It follows that there was no error in permitting the defendant to be asked on cross-examination as to her prior conviction of other criminal offenses. The twenty-third and twenty-fourth assignments are overruled.
It is not easy to see how the mere prior arrest of a witness upon a criminal charge can affect his credibility; and in Stout v. Rassel, 2 Yeates, 334, it was held that the credit of the witness is not to be impeached by charges of particular offenses of which he has not been convicted. The questions put to the defendant upon cross-examination, which are quoted in the twenty-seventh, twenty-eight, twenty-ninth and thirty-second assignments, were all doubtful of propriety, but as it does not appear that any evidence was adduced in answer thereto which was prejudicial to her, the assignments are not sustained.
The limits of cross-examination of a defendant, in a criminal case, who offers himself as a witness are largely within the discretion of the trial judge, and unless that discretion was so
It is admitted that the learned judge was mistaken in saying in that portion of his charge, which is the subject of the thirty-fourth assignment, that the statement in the action against the traction company was sworn to, but the error was probably cured by the remark of the assistant district attorney to the learned trial judge in the presence of the jury with regard to that matter. If the instructions in the first part of this assignment of error were all that had been given, they would have had a tendency to mislead as to the true nature of the issue, the burden of proof and the quality of proof required of the commonwealth. But taken in connection with other portions of the charge, we cannot say that they were misleading.
The remaining assignments of error do not require particular discussion. We are of opinion that the answers of the learned judge to the question propounded by the jury, and to the first and eighth points presented by the defendant’s counsel, were proper.
The judgment is reversed, and venire facias de novo awarded.