85 Pa. 519 | Pa. | 1877
delivered the opinion of the court, January 7 th 1878.
The paper-book of the plaintiff in error is very defective; it lacks much that -would assist us in acquiring a clear understanding of the case. Unfortunately the defect is in no manner removed by the defendant, who has omitted to furnish us with any paper-book. We are therefore left to grope our way as best we can. Whenever an argument is needed on the part of a defendant, jus
The plaintiff in error was indicted for murder. He was charged with the murder of an illegitimate child of his daughter. The daughter was a witness against her father. As we understand her testimony, she swore, at least in chief, to being present and hearing him commit an act which resulted in the death of her child. On the part of the defence it was claimed that this prosecution was a wicked scheme to ruin and destroy him ; that the charge of murder was not at first made. To show this fact, and thus to cast discredit on the testimony of the daughter, the plaintiff in error gave in evidence two transcripts of complaints against him, made after the alleged killing of the child. One made by the daughter charging him with incestuous adultery with her; the other by a friend of her, using her as a witness, charging him with incestuous rape. Wo do not understand that the plaintiff in error affirmed or denied the truth of the facts averred in either of those complaints. His object in giving them in evidence was to show that she did not then charge him with murder, but with other and lesser offences. By proving that those offences only were then charged against him, he sought to impair the force of her testimony in regard to her knowledge of his having previously committed the murder now claimed.
■ As rebutting, the daughter was recalled and permitted to testify, under exception, that the complaint charging the rape was true. We cannot see how this evidence was rebutting. It in no manner contradicted the fact that she did not then charge the crime of murder to have been committed by him. Its effect, however, was highly prejudicial to the accused. The indictment did not charge him with the commission of any rape. He was not being tried for such a crime. Without notice, or 'opportunity to prepare a defence against a charge of such an infamous crime, this evidence went to the jury. It was in manifest disregard of the rule of law that the evidence offered must correspond with the allegations, and be confined to the point in issue. Here ho was on trial for the commission of one felony; but the court admitted testimony of his having committed another felony of an entirely separate and distinct character. The two could not have been joined in the same indictment. In case the direct evidence of the homicide was not entirely satisfactory to the jury, yet they may readily have concluded, if he was such a monster as to have committed a rape on his own daughter, he had a heart sufficiently depraved to commit the murder charged against him. The evidence was not rebutting. He was denied that protection on his trial which the law gives to every person charged with the commission of crime.. '
We are not informed at what stage of the case, nor for what
The offer in this case fell far short of the requirements of the rule. It was not to prove any general reputation. It was not to show by the oath of a witness that he had actually ever committed a cruel act. It was merely that his children had frequently complained of his cruelty towards them. The complaints of his children did not necessarily establish a general reputation. If they had not, it was error to admit them in evidence. If they had, then the general reputation should have been proved as a fact, and the complaints of a few persons should not have been received for the jury to infer a general reputation therefrom.
Judgment ¡reversed, ;ánd a venire facias de novo awarded.
