Commonwealth v. Winkelman

Feb 16, 1900

Appeal, No. 130

Versions:12 Pa. Super. 497

1900 Pa. Super. LEXIS 269

Opinion by

Kick, P. J.,

Whether or not Jennie Hunter was “pregnant or quick with child,” and an instrument was used to procure her miscarriage in consequence of which she died were questions of fact, which, no matter how strong the evidence of the commonwealth may have been, it was the duty of the court to submit to the jury. We do not see how an intelligent and unbiased jury could have come to any other conclusion from the evidence than that these facts were proved; nevertheless thе questions were for them. As the defendant’s counsel correctly say, convincing proof that the wound revealed upon the post-mortem examination was the cause of death would not, of itself, compel the conclusion that it had resulted in a miscarriage. Hence, if the judge had instructed the jury that, if they found it was the cause of death, the only other question for their determination was whether it was inflicted by the defendant, he would have committed error. It is contеnded that this was the effect of the instructions complained of in the first and second assignments of error, but the ■earnest and able arguments of the defendant’s counsel have •failed to convince us that such is the case. The evidence that the female was pregnant was undisputed and overwhelming, and the evidence that an abortion had been produced, either by her own act or the act of some other person, was almost equally .strong, even if her dying dеclarations be left out of consideration. It was undisputed, also, that the wound would produce .an abortion; it was the theory of the defendant as well as of the commonwealth that it was inflicted in an attempt to accomplish that result; and it is scarcely supposable that it was inflicted for any other purpose. Under these circumstances it was not error for the judge to express even a very strong opinion that, if the testimony of the physicians was to bе credited, an abortion had been produced either by the woman herself or by some other person, and that this was the cause of death. This was the entire effect of the instructions complained of, whether taken by themselves or read, as they ought to be, in connection with the context. It is often permissible and sometimes advisable for a judge in his charge to the jury to express an opinion upon the facts, provided he does it fairly and does not give a binding direction or interfere with the province of the jury. Many of the civil cases where this is recognized are col*512lecfced in Ginder v. Bachman, 8 Pa. Superior Ct. 405. Amongst the criminal cases may be mentioned Johnson v. Com., 115, Pa. 369, Com. v. Orr, 138 Pa. 276, Com. v. Van Horn, 188 Pa. 143, and Com. v. McGowan, 189 Pa. 641. Such comment as is here complained of is particularly unobjectionable where it simply leads the minds of the jurors up to the substantial matter of controversy, but without binding them to accept the judge’s views as to the matters of fact concerning which there is no real conflict of еvidence. Having expressed his opinion as to these latter matters of fact the learned judge stated the whole question fairly and adequately as follows : “ If you determine that an abortion was committed by somebody, and that this was the cause of death, it then becomes necessary to determine by whose agency that result was accomplished.” There was no expression of opinion upon the pivotal question, namely, whether it was produced by thе pregnant female herself or by some other person, nor was the former hypothesis excluded from the consideration of the jury either expressly or inferentially. On the contrary, they were told more than once that if the deceased produced the abortion there could be no conviction, no matter what the defendant may have done afterwards. These assignments are overruled.

In the excerpt from his charge complained of in the third assignment the learned judge was strictly accurate except possibly as to the time when the alleged declarations were made. He did - not intimate, either there or elsewhere in his charge, that the attempts spoken of had been unsuccessful, but only that Bertha Fair had testified that the deceased had so declared. Nor did his subsequent correction of his statement as to the time of these declarations call for any modification, which would have bеen favorable to the defendant, of his instructions contained in the fifth assignment. Indeed, it is not accurate to speak of these remarks as instructions; they were simply inquiries fairly arising out of the testimony and properly suggested for the jury’s consideration. They were as pertinent in view of the testimony of Bertha Fair as actually given as they would have been if her testimony as to the time of the declarations had been as the judge first stated it. It is difficult to see how the slight inaccuracy in stating the time when the declarations were made to Bertha Fair could have been prejudh *513cial to the defendant; it is impossible to' see how it could have been after it was corrected. None of the cases cited by the defendant’s counsel in support of these assignments sustain their contention that such a mere slip as this in the recital of evidence was an error of so great magnitude that it could not be cured. And, after a somewhat extended examination we feel warranted in saying that no well considered case can be found in which a general rule is laid down, or a precedent established which does sustain it. The third, fourth and fifth assignments are overruled.

Though the presumption that a witness has testified to the truth may be repelled by contradictions in his testimony, or may be removed by proof that he has made contradictory statements, yet as the jury have the exclusive right to weigh the testimony and to determinе the facts, the question of his credibility must, notwithstanding discrepancies and apparent contradictions, be submitted to them. “Apparent inconsistencies and even contradictions in the testimony of witnesses do not necessarily imply wilful falsehood. As a general rule it is the safer and better course to instruct the jury that it is their duty to reconcile such discrepancies and contradictions, if it can be fairly and satisfactorily done, as it can in a great majority of cases. Failing in that, it is their duty, from all the light before them, to determine whether the witness should be believed by them or not. In other words, it is the province of the jury to pass upon the credibility of witnesses who testify before them: ” Fullara v. Rose, 160 Pa. 47. The same general rule applies to dying declarations (Com. v. Mika, 171 Pa. 273), and with added force where the apparent discrepancies may have resulted from differences in recollection of the persons who heard them, and where аs to the main fact the statements are consistent. The rule was" correctly applied in the present case in the instructions complained of in the sixth assignment, which should be read in connection with ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍what immediately precedes them, and with the answer to the defendant’s fifth point. It was not the duty, nor within the province of, the court to declare that the two statements of Jennie Hunter were so inconsistent and irreconcilable in material particulars that neithеr was entitled to credence in any particular. It was the duty of the judge to *514decide as to the admissibility of the declarations; it was the province of tne jury to pass on the credibility of the declarant.

Nor would the judge have been justified in saying to the jury that the testimony of the experts called by the defendant conclusively proved that it was impossible that the conditions described by Jennie Hunter in her two statements to her father and Dr. Fraunfelter, could have existed, and therefore they should acquit under the count of the indictment charging the use of an instrument. As one of these witnesses very pertinently said, “ We deal with possibilities and probabilities, they are different things ; the probabilities are it would not remain, you cannot say what is possible.” The most that could be required of the judge in the absence of request for particular instructions was that he state the defendant’s contention as to the facts established by this testimony and their effect as contradictions of the statements of Jennie Hunter, and leave the question to the jury. This was done fairly, and, although not with elaboration, yet with sufficient emphasis to impress upon the jury the importance of the evidence, and its bearing upon the question of her credibility.

It was entirely proper in the same connection to refer to the attempt of the commonwealth to show upon cross-examination of one of these witnesses, “ that some instrument if provided with certain appliances might be so used.” The judge did not say nor intimate that this attempt of counsel was successful, and a careful perusal of the cross-examination of this witness has failed to convince us that he would have been warranted in saying that it was wholly unsuccessful.

It is urged that it was error to charge that an arrangement had ever been made for the confinement of Jennie Hunter at defendant’s house; 'but this complaint is based on a misconceрtion of the judge’s charge. What he said was, that it appeared in the testimony of the defendant herself that it was arranged that Jennie Hunter should come to her house for the purpose of being confined in the u§ual way. If this was not a substantially accurate statement we confess that we do not understand her. testimony. The inquiries suggested in the same connection for the jury’s consideration were pertinent; they arose fairly' out of the evidence, and doubtless would hаve occurred to the minds of the jurors even if they had not been suggested by the *515judge. This mode of directing the attention of the jury to the question of the probability or improbability of an assertion of fact is customary and not necessarily improper: McLain v. Com., 99 Pa. 86. See also McNeile v. Cridland, 6 Pa. Superior Ct. 428. It may be abused, it is true, and be used as a thin disguise for a partisan argument in favor of the theory of one side or the other, which, however permissible for the advocate, is not so for the judge. But we find nothing of that kind in this case. A charge to be fair and impartial must not necessarily be colorless and carefully avoid reference to damaging facts.

As we read the charge, the learned judge did not assume that the defendant had fled, but only that this fact was alleged by the commonwealth, and in the same connection he stated the defendant’s explanation of her going to New York. This latter part of the charge is not quoted in the assignment of error, but reading the judge’s remarks upon this subject as a connected whole (see K. of P. v. Leadbeter, 2 Pa. Superior Ct. 461, and cases there cited) it will be seen that the jury were left free to determine the question of fact and its weight, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍if established, as a corroborating circumstance. The sixth, seventh and eighth assignments are overruled.

Dying declarations are only admissible when made by a person who is under the influence of an impression that his dissolution is impending. This is a preliminary fact to be proved by the party offering them in еvidence, and the proof offered for this preliminary purpose is addressed in the first instance to the conscience of the court. It need not be proved that the declarant stated in so many words that his statement was made under a sense of impending death. It is enough if it appears satisfactorily in any legitimate mode that it was made under that sanction : 1 Gr. Ev. sec. 158. “ The belief of a sudden dissolution is the test by which the competency of dying declarations is to bе measured: ” Sullivan v. Com., 93 Pa. 284. “ In order to judge whether or not such was the state of mind of the person in question the whole of the circumstances must be looked at: ” Roscoe’s Cr. Ev. (10th ed.) 34. This is the doctrine of the Pennsylvania cases: Kilpatrick v. Com., 31 Pa. 198 ; Small v. Com., 91 Pa. 304. As we have already suggested, this question and the question whether the declarant was of sound mind were primarily for the court. Whether exclusively *516for the court or not they were questions of fact, and after a careful examination of thе evidence we cannot say that the facts essential to the admission of the ante-mortem statements were not proved by competent and sufficient evidence.

The instructions to the jury upon this subject taken as a whole seem to us full and impartial and free from error. What the learned judge said upon the question of the soundness of mind of the declarant is supported by the authorities: Com. v. Straesser, 153 Pa. 451; Com. v. Silcox, 161 Pa. 484. He correctly and concisely summed up the requiremеnts as follows : “ But before they” (the declaration’s) “ can receive consideration at all at your hands you must be satisfied that she knew the extreme peril of her situation, and believed death to be certain and dissolution near; that she was conscious of her surroundings; that she answered the questions responsively and intelligently with knowledge of their effect and recollection of the events.” The ninth assignment is overruled.

It is to be observed that the defendant’s requests for special instructions were all granted. When, in such a case, the complaint is, that the charge was inadequate or one-sided, and particular error of law or material misstatement of the evidence cannot be pointed out, the court will be reviewed on the general effect of the charge, and not upon sentences or paragraphs disconnected from the context which qualifies and explains them; if, as a whole, the charge wаs calculated to mislead there is error in the record; if not there is none: McNeile v. Cridland, 6 Pa. Superior Ct. 428; Ginder v. Bachman, 8 Pa. Superior Ct. 405. In reviewing the assignments of error in the charge we have, perhaps, gone more into detail than was necessary. We are convinced that none of them contains reversible error, and we are wholly unable to agree with the learned counsel that a reading of the entire charge will leave the impression that the defense was slighted and the prosecution magnified. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍An entirely different impression has been left on our minds notwithstanding the very vigorous criticism of counsel. We are of opinion that it was neither one-sided nor inadequate, and that the exceptional cases where there has been a reversal upon either of those grounds do not apply. The remarks of Mr. Justice Mitchell in Commonwealth v. Kaiser, 184 Pa. 493, may be appropriately quoted. “ It is complained that here and there *517items that bore in favor оf prisoner were not especially mentioned. It is probable that the commonwealth might make the same complaint. It is not possible nor even desirable that the judge should refer to and emphasize every item of evidence on both sides in a way that the counsel would consider adequate. In doing so he would run much risk of coming to speak as an advocate rather than a judge. Nor is he required to go over all the evidence on any particulаr point every time he refers to the point in the course of his charge. It is enough if he gives to the jury a general review of the evidence on the one side and the other, which fairly and adequately presents the respective contentions of the parties, with enough reference to the items of evidence to assist the jury in recalling it as a substantial whole, and to appreciate its bearing.” The charge delivered by the learned judge in the case at bar comes fully up to this standard.

It is argued in support of the tenth assignment that the Act of June 26, 1895, P. L.. 387, entitled “ An act, making dying declarations competent in prosecutions for criminal abortions and attempted abortions, where the subject shall die in consequence of such unlawful acts,” is unconstitutional and void because it violates section 7, article 3, which prohibits the passage of any “ local or special law, .... changing the rules of evidence in any judicial proceeding or inquiry before courts,” etc., also because it conflicts with the constitutional right of the accused “ to meet the witnesses face to face.”

In Ayars’s Appeal, 122 Pa. 266, Chief Justice Stbbkett said that “the underlying principle of all the cases is that classification, with the view of legislating for either class separately, is essentially unconstitutional, unless a necessity therefor exists, a necessity springing from manifest peculiarities, clearly distinguishing those of one class from еach of the other classes, and imperatively demanding legislation for each class separately, that would be useless and detrimental to the others. Laws enacted in pursuance of such classification and for such purposes are, properly speaking, neither local nor special. They are general laws, because they apply alike to all that are similarly situated as to their peculiar necessities.” If this be true of laws еnacted pursuant to a classification made by the legislature, with the view of legislating for each class separately, it *518must be equally true of laws enacted for existing classes distinguished one from the other by manifest peculiarities, where, by reason of such peculiarities, legislation that might be demanded for one class would be wholly unnecessary and inappropriate for the others. The act of 1895 comes fairly within this well recognized principle. It was nоt enacted to meet the exigencies of a particular case — which, probably, was the kind of vicious legislation the framers of the constitution had specially in view — but, with a manifestly proper qualification, it applies alike to the trial of all prosecutions in which the particular crime is charged. It is true it does not apply to all prosecutions in which the fact of the death of any person is in issue — as, for example, where the charge is thаt the child with which the woman was quick died in consequence of the criminal act — but only to cases where it is charged that the woman died in consequence of the criminal act. But surely this limitation of the operation of the act to this exceptional class of cases, to the exclusion of those in which the legislature had not power to make the evidence competent, does not make it a special law, within the true' intent and meaning of the constitutional provision.

One of the exceptions to the common-law rule rejecting hearsay evidence is allowed in the case of dying declarations. The exception is as old as the rule itself, and it has uniformly been held that it was not abrogated by express provisions of constitutional law which secure to the person accused of a crime the right to be confronted with the witnesses against him.

Different reasons for this conclusion have been given (see People v. Corey, 157 N. Y. 832, 347, Hill v. Commonwealth, 2 Gratt. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍(Va.) 607, State v. Houser, 26 Mo. 431, and Brown v. Com., 73 Pa. 321), but we are not called upon to discuss them. It is sufficient for present purposes to say that it is well settled that the rule, as it existed at common law, is not in conflict with our bill of rights; therefore, an act confined in its operation to cases within the common-law rule cannot be in conflict with it. At the common law the crime charged in this indictment was felonious homicide and punishable as such. In Commonwealth v. Keеper, 2 Ash. 227, Judge King said: “ Of the legal character of the offense, if proved as charged, no doubt can be entertained. One of the most learned and humane *519sages of the common law, Sir Matthew Hale, gives the following as the doctrine ruled by him at Bury assizes in 1670 : ‘If a woman be with child, and any gives her a potion to destroy the child within her, and she takes it and it works so strongly that it kills her, this is murder; for it was not to cure her of a disease, but unlawfully to destroy her child within her; and, therefore, he that gives а potion to this end must take the hazard, and if it kills the mother it is murder.’ ” He also cites Tinkler’s Case, 1 East. P. C. ch. 5, sec. 17. See also 4 Lewis’s Bl. Com. 201, State v. Dickinson, 41 Wis. 299, and Peoples v. Com., 87 Ky. 487, 492. In a prosecution for homicide, as such, committed by performing an abortion, the dying declarations of woman as to the abortion, i. e., the cause of death, are admissible : Simons v. People, 150 Ill. 66; State v. Leeper, 70 Iowa, 748 ; State v. Baldwin, 79 Iowa, 714; Peoples v. Com., supra; State v. Dickinson, supra. But the crime cannot be so prosecuted in this commonwealth becausе, and only because, it has been made a statutory offense. “ Thus section 87 took the crime therein specified out of the class designated as murder, and made it a felony of lesser grade, and prescribed the punishment therefor. Hence no penalty therefor shall be inflicted or anything be done in punishment thereof otherwise than as directed by said section: ” Com. v. Railing, 113 Pa. 37. As the “ dying declaration ” rule was strictly confined at common law to prosecutions for hоmicide, when the crime was put into another class by statute, and is no longer indictable as homicide, it was taken out of the operation of the rule, and the declarations were no longer admissible in evidence. This question was thoroughly discussed by the present chief justice in the Railing case, when it went up the first time (110 Pa. 100), and the inadmissibility of the declarations in a prosecution for the statutory offense was conclusively shown. But it will be seen that he nowhere, alludes to the provision of the bill of rights as being a bar to the admission of the evidence in cases of criminal abortion resulting in the death of the victim. Nor does he intimate that if the statute relative to that crime had not been enacted it could not be prosecuted as a felonious homicide, nor that the dying declarations of the woman were not admissible in such prosecution, i. e., for homicide, at common law. That case was decided ten years before the passage of the act of *5201895, and of course the question that is now presented did not arise, nor was it discussed in the opinion. The question is, not whether the legislature had power to extend the dying declaration rule to cases that never were within it, but whether it was prohibited from declaring that it shall apply to cases which are within its reason and'were within its very letter until the legislature reduced the crime from felonious homicide to a felony of a lesser grade. The statute was passed for a wise purpose, and because it had been demonstrated by experience that the same reason which lies at the foundation of the rule under which dying 'declarations are admitted in homicide cases still exists for the admission of such testimony in the prosecution of indictments for criminal abortion resulting in death, notwithstanding the fact that the crime is no longer felonious homicide: Com. v. Keen, 7 Pa. Superior Ct. 293. We are not convinced that the legislature had not power to make the evidence ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍admissible, as has been done in other states. See Com. v. Homer, 153 Mass. 343, Com. v. Thompson, 159 Mass. 56, and Com. v. Bishop, 165 Mass. 148.

The judgment is affirmed, and it is ordered that the record be remitted tó the end that the sentence be fully carried into effect, and it is further ordered that the defendant forthwith surrender herself to the warden of the pénitent-iary for the eastern district of Pennsylvania, and serve, out so. much of the period of imprisonment prescribed by said sentence as had not expired on June 30','1899, the day the supersedeas on this appeal took effect.