Commonwealth v. Farrell

Evidence — Expert witnesses — Opinion of witness. Two things must concur to justify the admission of an expert witness-first, the subject under examination must be one that l-equires that the court and jury have the aid of knowledge or experience such as men not specially skilled do not have, and such therefore as cannot be obtained from ordinary witnesses; second, the witness called as an expert must possess the knowledge, the skill or experience needed to inform and guide the court and jury in the particular case. Upon such a question such a witness may be called and may testify not merely to facts, but to conclusions from the facts. Criminal laiv — Murder—Evidence—Expert testimony. On the trial of an indictment, for murder, it appeared that after the arrest of the prisoner liis room was searched, and an old, worthless pocketbook was found in his bed. The murder had been committed six months prior to the prisoner’s arrest. Evidence was offered to show that the pocketbook had been rudely mended with thread of the usual size and character. It was sought to connect this pocketbook with the deceased by showing that he had a smaller pocketbook which had been mended in a similar manner. For this purpose a witness was put upon the stand as an expert to prove that the repairs upon each pocketbook had been made by the same person, with the same thread. The witness declined to say that the repairs on both were made by the same person. The thread used liad been the same in number on both, as he thought, but it was a common number, and was not a certain basis for an opinion that the work had been done by the same person. This evidence was submitted to the jury, with the instructions that if the pocketbook found in the prisoner’s bed was one of those which the murdered man owned and had in his possession at, the time of his death, it would be a strong presumption of the defendant’s guilt. Held, (1) that there was no question of art or skill raised by the evidence upon which special knowledge was needed; (2) that the witness did not show himself possessed of expert knowledge, if it had been necessary; (8) that the jury should have been instructed that it did not follow from the evidence that the prisoner either took the pocketbook from the murdered man or placed it where it was found; (4) that the credibility of the story was for the jury, and they should first have determined its value. The question as to the length of time after death when rigor mortis may be expected to set in is a question for expert medical testimony, and cannot be answered by an undertaker’s assistant, who has no medical knowledge, who states that he is not an expert on the subject and whose only experience has been in preparing dead bodies for burial without his attention being specially directed to the subject. Criminal law — Murder—Evidence— Threat. In the trial of an indictment for murder a threat to rob the deceased is admissible to show knowledge or motive on the part of the prisoner, but there is no such legal presumption that the threat will be executed as relieves the commonwealth from the duty of proving the fact it alleges, viz: the participation of the prisoner in the robbery and killing of the deceased. Criminal law — Murder—Evidence of detectives — Cross-examination. On the trial of an indictment for murder where it appears that detectives had been employed by the county to work up the case against the prisoner, they, for the purpose of showing their interest or feeling in the cause, may be asked upon cross-examination to state the general eharaeter of tlie contract with the county, and how the pay of the agency was to be adjusted.

Appeal, No. 442, Jan. T., 1898, by defendant, from judgment of O. & T. Blair Co., March T., 1896, No. 4, on verdict of guilty of murder in the first degree. Indictment for murder. Before Bell, P. J. The circumstances connected with the killing of Henry Bonnecke are fully reported in Commonwealth v. Wilson, 186 Pa. 1. Michael Poet, called on the part of the commonwealth, testified as follows : “ Q. Can you determine from your experience, as you have narrated it, how long a body has been dead or about how long?” Objected to. By the Court: “ Q. Have you had some experience with dead bodies, regard being had to the time that death occurred and the time when you found them ? A. Yes, sir ; I have also been in the undertaking business a number of years, and when I was in the army.I had charge of assorting the dead from the general hospital at Hilton Head, South Carolina.” By Mr. Henderson, counsel for defendant: “ Q. Have you studied any works on medicine? A. No, sir. Q. Have you never read any works at all on it ? A. No, sir; not any more than what a person would read in books, papers, etc. Q. You don’t claim to be an expert? A. No, sir.” By Mr. Hammond, district attorney: “ Q. Can you determine from your experience as you have narrated it how long a body has been dead, or about how long, when you examine it ? A. Well, I cannot answer that question fully; if a person is killed or dies, from six to eight hours (objected to). That is my experience in handling corpses. By the Court: I think we will allow the question to be asked. The objection is overruled and a bill is sealed for the defendant. By Mr. Hammond : “ Q. How long had Henry Bonnecke been dead, in your judgment, when you found him ? A. Well, I think he had been dead from some time during Saturday night; that would be on the 6th day of April.” [2] The court refused to strike out the testimony of Michael Poet. Bill sealed. [3]. The commonwealth offered to prove by Joseph Peddicord that James Farrell, the defendant, Frank Wilson and William Doran associated together prior to the murder of Henry Bonnecke, in the year 1894, and conspired to rob Henry Bonnecke of liis money; and that after said conspiracy, the defendant and the witness assaulted said Bonnecke in his house and attempted to rob him; and that said defendant, after said attempt to rob him, the said Henry Bonnecke, and on the evening of the same day, to wit: February 21, 1895, proposed to witness on the stand that they renew their attack upon said Bonnecke for the purpose of robbing him; that the witness declined and that then the defendant swore he would get Bonneeke’s money yet if he had to kill him. The offer was objected to for the following reasons : 1. Because James Farrell, the defendant, is now on trial for murder, which is a separate and distinct offense, and entirely independent of the other offense proposed to be proved. 2. The offer is to prove that the defendant, James Farrell, Frank Wilson and William Doran associated together in the year 1894 and conspired to rob Henry Bonnecke of his money; and in pursuance of said conspiracy, the defendant and witness assaulted said Bonnecke at his house and attempted to rob him on February 21, 1895. 3. This indictment is against the defendant alone, and there is no offer to prove that either Wilson or Doran took any part or made any attempt to rob Bonnecke on February 21, 1895. 5. Joseph Peddicord, being a self-confessed accomplice, is incompetent as a witness to prove the facts in the commonwealth’s offer. 6. He is further incompetent for the reason that he is a convicted felon, and so shown by the records of this court. The witness is incompetent and the evidence irrelevant and inadmissible. By the Court: June 23, 1896, objection overruled and evidence admitted. Bill sealed. [4] William Goetz, called on the part of the commonwealth, testified as follows: “ Q. State whether you are a judge of sewing? A. Well, I know whether a garment is sewed correctly. Q. Would your experience and skill enable you to determine whether two dii> ferent pieces of sewing were sewed with the same thread and bjr the same hand ? A. I know if it was sewed by the same thread but not positively that it was sewed by the same hand ; ■you could tell the same thread. Q. (Showing pocketbook.) Look at these pocketbooks and examine the sewing on this one there and the sewing on this one here and say whether the sewing was done by the same thread.” Objected to. By the Court: The objection is overruled and a bill sealed for the defendant. [5] Daniel McS weeny, a witness for the commonwealth, on the stand, having stated that he came to Altoona, Pa., on April 16, 1895, to investigate this case, the defendant’s counsel proposed to ask him on cross-examination who employed him to come here; whether he came under a contract for fees, expenses, etc., and what the contract was; how long the agency with which he is connected, and its detectives have been employed on this case; how many men they engaged upon it; what is the amount of their bill and by whom to be paid; and what are the nature, amount and kind of services rendered; with whom the contract was made; if he or his firm employed private counsel to prosecute this case;' and if so, how and by whom is he to be paid. The witness having testified that he had been employed by the government and had left their employ, the counsel for the defense proposed to ask him why he left the services of the government, and whether he was not discharged for improper conduct. This for the purpose of affecting the witness’s credibility. The commonwealth objected to the questions as irrelevant to the issue and immaterial. By the Court: We have already admitted part of the offer of evidence or part of the questions proposed in the offer and Aye now reject that part of the offer which seeks to prove this particular, as to the amount of the witnesses’ bill or the bill of the detective agency of which the witness is a member. We also reject the question as to how much, if anything, is to be paid any private counsel employed; but we will allow the question to be put as to whether any private counsel has been employed by the detective agency to assist on the trial of this case: Cross-examination: “ Q. Do you know how much you paid the men ? A. That is a personal question which I. refuse to answer.” Objected to, objection sustained and a bill sealed for the defendant. “ Q. How much have you charged the county with?” Objected to, objection sustained and a bill sealed for the defendant. “ Q. How much money have you received from the county upon this contract?” Objected to, objection sustained and a bill sealed for the defendant. [13] The court charged in part as follows : [The commonwealth further claims that, regard being had to the absence of rigor mortis, or the stiffness of death, and the alleged fresh condition of the blood found near the head, together with the further alleged fact (as claimed by the prosecution but denied by the defense) that respiration was entirely shut off by the handkerchief in the mouth and the cloth around the face, Bonnecke was murdered on the night preceding the day on which he was found, to wit: on the night of April 6-7, 1895.] [15] [Starting out with this claim or assumption, the commonwealth offers evidence which, it is alleged, points to the guilt of James Farrell, the defendant, and proves that he is the murderer, or one of the murderers, of Henry Bonnecke. Threats made by Farrell after his unsuccessful attempt to rob Bonnecke on February 21, 1895, as testified to by Joseph Peddieord, are relied on by the commonwealth as part of such proof. In this connection, however, I would caution you not to attach undue importance to the fact that Farrell did attack Bonnecke on February 21, 1895. Such fact was properly admissible in evidence as part of the res gestar, or surrounding circumstances, of Peddicord’s testimony, and as a circumstance which might point to the probability of Farrell’s renewing the attempt, but you must not allow it to unduly prejudice you against the defendant. Farrell is now on trial, not for the attempt to rob Bounecke on February 21,1895, but for the killing of Bonnecke in April of that year. The occurrence of February 21, 1895, is only to be considered by you in so far as it may throw any light, if it does throw any light, on this occurrence of April following, namely, the killing of Bonnecke. If it throws no such light on said occurrence of April following it, that is, the attempt made in February, it is to be wholly disregarded and lost sight of by you.] [16] Further, the commonwealth avers and has offered evidence tending, as it claims, to prove that Farrell, on receiving his first pay at Allequippa, Beaver county, Pennsylvania, whither lie had gone after his attempt in February, on Saturday, April 6, 1895, took the noon train on the Pittsburg and Lake Erie Railroad for Pittsburg, and on that afternoon or evening came to Altoona, over the Pennsylvania Railroad. The commonwealth points to the testimony of Mr. Koelle and Miss Lindley, as showing that he was in Altoona on Saturday afternoon, and to the testimony of ex-Sergeant of Police, John M. Weakland, as proving — this is the claim of the commonwealth — -that Farrell was in Altoona on the following afternoon, Sunday, April 7, 1895. It is further claimed by the prosecution that the alleged conversation, testified to by Miss Lindley between three men she saw on Sixteenth street, shows that Farrell was in Altoona on a guilty errand on the evening of April 6, 1895. [A pocketbook was found in a bed in the house of James Donnelly, at Allequippa, a day or two after the arrest of Farrell in November, 1895. Farrell boarded with Donnelly, who was his brother-in-law, while he, Farrell, was in Allequippa. The commonwealth alleges that this pocketbook, so found, belonged to Henry Bonnecke, was stolen from him when he was killed and was concealed in that bed at Allequippa by Farrell. The question as to the ownership of this pocketbook, whether it was the pocketbook of Bonnecke, whether the sewing in the repairing of the pocketbook is similar or dissimilar to certain repairs in a certain pocketbook or pocketbooks found in Bonnecke’s house after his death — these and similar questions arising about the pocketbook found at Allequippa are so exclusively questions of fact' for the decision of a jury that I refrain from commenting further on the subject. You will have the various pocketbooks offered in evidence,'in your- jury room; you will examine them and consider the questions involved, and the arguments of the respective counsel pro and con, viewed in the light of the evidence, and reviewed by your own examination of tbe pocketbooks. If tbe pocketbook in question, to wit: tbe pocketbook found in the bed at Allequippa, was the pocketbook of Henry Bonnecke, and was stolen at the time of his death, in April, 1895, and was taken to Allequippa by Farrell, and was concealed in his bed, then there would be a strong presumption arising from the j)ossession of stolen property that Farrell was the robber or one of the robbers who stole said pocketbook; and, inferentially, it would strongly tend to show that he is guilty of being concerned in the death of Henry Bonnecke.] [17] On the contrary, if you have a reasonable doubt as to whether this pocketbook ever belonged to Henry Bonnecke, you should dismiss the circumstance of the finding of the pocketbook from the case and allow it to have no weight against the defendant. From the foregoing facts and circumstances and from some other facts and circumstances, the commonwealth claims to have proved beyond any reasonable doubt that James Farrell, the defendant, killed or aided or assisted in the killing of Henry Bonnecke, and, therefore, should be found guilty. The commonwealth having shown that Farrell was in Allequippa, Beaver county, Pennsylvania, at noon on Saturday, April 6, 1895, and it being physically impossible for him to have reached Altoona until about 7 o’clock on that evening if he came on fast freight, or not before 9 o’clock, if he came by passenger train, the defense claim very strenuously that he, Farrell, could not have been in any wise concerned in the alleged murder of Bonnecke, because the defense say the attack upon and robbing of said Bonnecke occurred prior to said Saturday evening, April 6,1895; most probably, so the defense claim, on Thursday night, April 4, or Friday night, April 5. How is this, gentlemen ? It is a question for you to decide on the evidence, and it is so exclusively a question of fact for the decision of the jury, that I refrain from commenting on the evidence, but refer the question to you for decision. If you have a reasonable doubt as to whether the attack on Henry Bonnecke, resulting in his death, occurred prior to Saturday evening, April 6, 1895, such doubt should operate to the acquittal of the defendant, and you should find him not guilty, as on the testimony of the commonwealth Farrell could not have reached Altoona prior to from 7 to 9 o’clock on said Saturday evening, April 6,1895. Furthermore, as part of the defense, the defendant takes the witness stand and testifies most positively that he is innocent and was in no wise concerned in the robbing of or killing of Henry Bonnecke in April, 1895. He testifies that he was in Allequippa on the afternoon of April 6, 1895, his first pay day there, and in the evening of that day went to Beaver and spent the night there, returning to Allequippa on Sunday morning, April 7,1895. He has given a somewhat detailed account of his action on the afternoon, April 6, and that night, April 6-7, 1895. You are the judges of his credibility. On the one hand, it is claimed by the commonwealth that he has a strong motive to falsify, and that the fact that he brings no witness to corroborate him to any material extent, or to corroborate his alibi, is evidence that he is falsifying. On the other hand, it is claimed by his counsel that circumstances beyond his control prevent his calling his sister, Mrs. Donnelly, and her husband, in whose house he lived in Allequippa, to corroborate Iris story, and that it is unlikely that any one else about Allequippa could, after the expiration of some nine months, remember his whereabouts on April 6-7, 1895, as he was a comparative stranger in that place. It is further claimed by his counsel that at most he is but the unfortunate victim of some isolated, suspicious circumstances, which, all taken together, are not sufficient to warrant a jury in finding him guilty of the high crime of murder. These matters are all for your consideration and determination. I have refrained from commenting on the testimony in this case, much less have I attempted to recapitulate or repeat it all, as I deem the questions to be solved to be almost exclusively questions of fact which it is the province of the jury, not the court, to decide; and the case has been most elaborately, carefully and ably argued pro and con by the respective counsel. You, gentlemen, however, will make a conscientious endeavor to keep before your minds, as you deliberate on your verdict, all the evidence, and give to each particle of it the weight to which “it may be entitled. Some of the evidence may be conflicting; counsel for the commonwealth and for the defense have respectively argued to you that some witnesses are mistaken in their testimony, others are wilfully falsifying. The question of the veracity or truthfulness of the respective witnesses is a question to be determined by you. If there is conflicting testimony you will endeavor to reconcile the same without imputing perjury to any one. If such conflict can be reconciled, then it is your particular province to determine whom you will believe, and, in such determination, you will conscientiously endeavor to pay due regard to the matter testified to by the witness, the manner of the witness when testifying, the liability to be mistaken and the motive, if any, to falsify. [In relation to the testimony of detectives, I cannot agree with the assertion made by the senior counsel for the defense in his argument, that it is a rule of law that the testimony of policemen and detectives is the most unsatisfactory and unreliable proof. I know of no such rule of law; certainly I never heard of any such rule laid down by either of the two learned judges who were my immediate predecessors on this bench; and such rule will not be laid down by this court, as the law, until some higher authoritative court compels its adoption. Detectives, from the nature of their employment and associations, may naturally be predisposed to suspect guilt and to put a guilty construction upon actions. Juries should keep this in mind in considering their testimony; but apart from this consideration their testimony should be viewed in the same light, weighed in the same scales, and measured by the same rules as the testimony of other witnesses. If the detective is disreputable or dishonest, or his testimony bears the earmarks of untruth, it should be disbelieved. True, the employment of competent detectives is expensive, but all the machinery for the detection and punishment of crime is necessarily expensive; but I do not think any citizen of Blair county would begrudge such expense, and, in this same connection, it might be proper for me to say, so as to disabuse your minds of any idea that what has just been said on the subject of detectives was in the least intended to prejudice your minds against the defendant or weigh against him, that I do not think any citizen of Blair county begrudges the expense incident to giving defendants, charged with high crimes, a fair and impartial trial, so that only "those who are proved to be guilty shall be convicted.] [18] Verdict of guilty of murder of the first degree, on which verdict sentence was passed. Errors assigned among others were (2, 3, 4, 5,13) rulings on evidence; (15, 18) above instructions, quoting them. Poet was not an expert: State v. Phair, 48 Yt. 366; Nelson v. Sun Mut. Ins. Co., 71 N. Y. 453. A defendant cannot be convicted of one crime by proving that he committed another one: Ronsall v. State, 35 Ind.460; People v. Barnes, 48 Cal. 551; People v. Sharp, 107 N. Y. 427. The court should have permitted the attorney for defendant to ask Daniel McSweeny, on cross-examination, what compensation the detective agency was receiving from Blair county for its services in this case, and also as to the compensation of its operators who did the work on the case, for the purpose of showing their extreme interest and bias in the case, and to impeach their testimony: Shepard v. Parker, 36 N. Y. 517; Reg. v. Overton, 2 Moody C. C. 263; Com. v. Bonner, 97 Mass. 587. Michael Poet was called by the commonwealth and examined touching the question of the length of time Bonnecke had been dead when his body was found. Poet was not called as an expert witness, nor did he testify as such. He did testify that he had experience with dead bodies; that he had been in the undertaking business for a number of years, and that when he was in the army he had charge of assorting the dead from the general hospital, at Hilton Head, South Carolina. When Bonnecke was found murdered on April 7, 1895, Poet was the coroner of Blair county, and, as was his duty, he examined the body, found it warm, limp and no presence of rigor mortis. He found a pool of fresh blood at the side of the head, and the wounds upon the head were still bleeding. These facts enabled him, with his experience, to approximate the time when Bonnecke died. There was no error in permitting Peddicord to testify to the attack made upon Bonnecke by the witness and the defendant, February 21,1895, after he testified to their planning and plot-tings to rob Bonnecke during the previous summer in the woods back of Altoona: Com. v. Ferrigan, 44 Pa. 388; Kramer v. Com., 87 Pa. 299; Kerr on Homicide, sec. 426; Wharton on Crimiual Evidence (8th ed.), sec. 756. Threats made by the accused, prior to the commission of the alleged offenses, are competent proof: 1 Bishop’s Criminal Procedure, sec, 1110; Com. v. Crossmire, 156 Pa. 310; Com. v. Sal-yards, 158 Pa. 502.