Commonwealth v. House

Opinion by Rice, P. J.,

The general proposition that the testimony of a defendant cannot be used against him on a second trial of the same indictment, if he elects not to go upon the witness stand, is not strongly urged in the present case, and is not well founded upon principle or authority. Pie cannot be compelled to give evidence against himself, but if he gives it voluntarily he cannot object to having it used against him. His constitutional privilege, as far as that testimony is concerned, is waived, and cannot be reclaimed in any subsequent trial of the same indictment. As was said in Com. v. Doughty, 189 Pa. 388 , his admissions or declarations would be evidence against him; and if so why not his testimony under oath ?

Nor, where the commonwealth desires simply to prove certain admissions' of a defendant made upon a former trial, is it necessary to put in evidence his whole testimony; but if anything is omitted which may tend to explain or qualify those admissions the defendant may call it out upon cross-examination. See Calhoun v. Hays, 8 W. & S. 127 ; Thomas v. Miller, 151 Pa. 482 . This was the course pursued in the present case, and it is not claimed that the jury did not have before them all of the testimony, favorable to the defendant, which he gave upon the former trial concerning the subject-matter of the alleged admissions.

The method of proving by the official reporter what was testified to was proper and in accordance with well settled practice: Wh. Cr. Ev., sec. 231; and this too although the stenographer did not recollect the testimony independently of his notes: Rhine v. Robinson, 27 Pa. 30 ; Brown v. Com., 73 Pa. 321 .

Some of the admissions put in evidence bj>- the commonwealth were elicited upon the cross-examination of the defendant, and it is argued that proof of them was not admissible upon the present trial, (1) because they were irrelevant; (2) because they were made in answer to questions which were not within the legitimate scope of cross-examination, and were objected to at .the time. Both of these objections were raised when the case was here before, and were overruled: 3 Pa. Superior Ct. 304 . At the earnest request of the defendant’s counsel we have carefully reconsidered the ruling, and see no reason for coming to a different conclusion. Were the facts testified to relevant to the issue? Was the cross-examination proper, or was it an *105 infringement of the defendant’s constitutional privilege not to give evidence against himself ? In determining the latter question the case must be looked at as it was presented when the testimony was given. The defendant has no right to have that question reconsidered in any other light. This requires a brief review of what preceded the defendant’s cross-examination.

W. C. Moreland was city attorney, and the defendant was his regularly appointed assistant. It was the defendant’s duty to collect assessments for grading, paving, curbing and sewering, and assessments of benefits upon the opening of streets and the like, and to pay the money so collected to the city treasurer, or to parties awarded damages in the proceedings referred to. The money thus collected, or at least a large portion of it, was deposited by him in four banks to the credit of the personal account of Moreland. As a general rule, payments to the city treasurer and other parties were made by checks drawn by Moreland to the order of the defendant. The defendant had charge of, or access to, the bank books, and at all times had full knowledge of the condition of the accounts. The defendant was jointly indicted with Moreland under the 65th section of the Act of March 81,1860, P. L. 400. Moreland was charged with having converted over $26,000 of the public funds to his own use, and with being a defaulter as to the same, and the defendant was charged with aiding and abetting and being accessory to the act of Moreland. Moreland pleaded guilty, and on the first trial of the defendant, as well as upon his second trial the commonwealth proved, amongst other things, that the defendant made false representations to the city officers, and to others entitled to receive the money as to the reception of the money and as to the amount on hand that could be paid into the city treasury. Persons to whom damages had been awarded in street opening cases and the like were put off with the false representation that the benefit assessments had not been paid in, and proof was given of false statements made to the city controller as to the amount on hand that could be paid into the city treasury. W e need not recite the evidence upon this subject in detail. It is sufficient for present purposes to say that it was ample, if unexplained, to warrant an inference of fraudulent intent. On the first trial the defendant attempted to meet this evidence either by denial, or by explanation to the effect, that, although he might have made mistakes, *106 yet, if any of his statements were úntenle, .they were not made with intention to mislead or deceive. ' To lend plausibility to this theory he asserted directly, and by. inference, that he was a mere subordinate, acting simply for his superior officer in depositing and paying out the money, and that he had no perr sonal interest or motive for deceiving any one with regard to the reception of the money, or the amount on hand. There can be no question that the representations made by him were efficient in the consummation of the embezzlement charged in the indictment, and it was of the highest importance to him to convince the jury that they were innocently made. His assertion that he had no interested motive for making false statements, if believed by the jury, would have been strongly corroborative of his other assertion that, he had not intentionally misreprer sented the facts. It, therefore, was competent for the district attorney to cross-examine him upon this subject. - This elicited the admission, that, at the time when the defendant was making these statements to the city controller and others as an excuse for not paying over these public moneys, he, personally, was receiving quarterly interest on the same, from the banks in which they were deposited. This admission strongly tended, not ordy to rebut the theory of mistake set up in his direct examination and thus to discredit him as a witness, but also to show that he had a personal interest to be served in making the false and misleading statements, and in withholding the money, This was pertinent cross-examination: Fulmer v. Com., 97 Pa. 503 .

Incidentally, the defendant’s admission tended to show a vior lation of the 63d section of the act of 1860.which prohibits officers from entering into any contract or agreement with any bank by which such officer is to derive any benefit, gain or advantage from the deposit with such bank of any money which may be in his possession or under his control by virtue of his office. This is a distinct and independent offense, but it does not necessarily follow that proof of it was inadmissible on the trial of the indictment framed under the 65th section. It might, or it might not be, according to the circumstances of the particular case on trial. Generally, evidence of the defendant’s commission of another distinct and independent crime cannot be received for the purpose of proving his commission of the *107 offense for which he is being tried. Yet under some circumstances such evidence may be given. “ Thus it may be to establish identity; to show the act charged was intentional and wilful, not accidental; to prove motive ; to show guilty knowledge and purpose, and to rebut any inference of mistake; in case of death by poison, to prove the defendant knew the substance administered to be poison; to show him to be one of an organization banded together to commit crimes of the kind charged; and to connect the other offense with the one charged, as part of the same transaction : ” Goersen v. Com., 99 Pa. 388 ; Wh. Cr. Ev. sec. 53; Com. v. Johnson, 133 Pa. 293 ; Com. v. Tadrick, 1 Pa. Superior Ct. 555 ; Com. v. Bell, 166 Pa. 405 ; Com. v. Cover, 6 Cent. Rep. 585; Turner v. Com., 86 Pa. 54 ; Ferrigan v. Com., 44 Pa. 386 ; Kramer v. Com., 87 Pa. 299 . If, for example, one indicted for breaking and entering a dwelling house with intent to commit the felony of larceny should admit the breaking but should deny the intent, T take it that upon cross-examination he could be asked if he did not commit the larceny. The cross-examination in the present case was as pertinent to the matters testified to in chief as would be the cross-examination in the case supposed.

It was .earnestly argued, when the case was here before that the court erred in refusing the request of the defendant’s counsel to instruct him that it was his privilege to decline to answer the questions, if his answers might tend to criminate him. The court committed no error, in refusing this request. The defendant is a member of the bar, and • must be presumed to have known his rights, .-The privilege was not claimed by him but by his counsel for him. But we do not put our ruling upon that ground. We are of opinion, • that, even if• the defendant had personally asked to be excused from answering the questions, the court would have been justified in overruling his request. A defendant in a criminál case cannot’be compelled to testify, and under our statute -no inference can be drawn from, nor comment be made on, hi’s failure ’to do so. But by'con-1 senting to take the stand, and swearing to tell the truth and’ the whole truth he waives his constitutional privilege, and may be cross-examined in the same manner as any other witness. There is this difference, however, between an ordinary witness, and a defendant testifying in his own behalf ; the former goes; *108 upon the stand by compulsion, the latter voluntarily. Having waived his constitutional privilege to keep silent, he cannot give testimony which makes in his favor, and then object to legitimate cross-examination, upon the ground that his answers will tend to criminate him. This doctrine is supported by the great weight of authority: Wharton’s Cr. Ev. secs. 432, 470 ; State v. Witham, 72 Me. 531 ; State v. Thomas, 98 N. Carolina, 599; People v. Connors, 50 N. Y. 240 ; Com. v. Nichols, 114 Mass. 285 ; Com. v. Tolliver, 119 Mass. 312 . See also 9 Cr. L. Magazine, 306; State v. Ober, 52 N. H. 459.

The power of cross-examination has been justly said to be one of the principal, as it certainly is one of the most efficacious, tests, which the law has devised for the discovery of truth. It is not easy for a witness, who is subjected to this test to impose on court or jury; for however artful the fabrication of falsehood may be, it cannot embrace all the circumstances to which a cross-examination may be extended: 1 Gr. Ev. sec. 446. There is good reason for not making the test less rigid where the witness is a deeply interested party. The extent to which a defendant in a criminal case may be subjected to this test is a question upon which the authorities do not wholly agree. In some of the states of the Union it is held that he may be cross-examined as to the whole case; in others that the cross-examination should be confined to facts and circumstances connected with matters stated in the direct-examination. In either view of the right of cross-examination, the court did not transgress the rules of evidence, nor violate the defendant’s constitutional right, by holding, that the questions were pertinent to the matters stated in his direct examination and that it was his duty to answer them. The facts admitted were pertinent to the issue, and the admissions were not obtained by illegal compulsion.

The second assignment of error is overruled.

Plainly stated, the question raised by the first assignment of error is, whether the defendant in an indictment for a misdemeanor can be denied the right to be present when the court charges the jury in his case, and the conviction be sustained? We use the word “denied” advisedly, for while the defendant was not forcibly excluded from the court room, and while there is not the slightest evidence or intimation that the learned and *109 impartial trial judge intended to deprive him of any legal right, yet the practical effect of his calling the jury into the court room, after the court had regularly adjourned for the day and then advising them as to their duties as jurors, and instructing them as to the law of the case, in the absence of the defendant and his counsel, and without any effort to notify them to be present was to deny him the right to be present. He was not bound to remain in the court room after the court had adjourned for the day. He had a right to presume that no further instructions would be given to the jury, either there or elsewhere, during the adjournment. No waiver or consent can be implied from his absence under the circumstances stated in the bill of exceptions. He must be considered “ as standing upon all his legal rights and waiving none of them; ” and one of them was the right to be present either in person or by counsel when his case was being tried. We cannot conceive of a trial for a crime resulting in forfeiture of the citizen’s liberty where the law, or the court in the administration of it, can deny him the privilege of being present. The right is inherent in the very nature of the proceeding, and, moreover, is secured to him in the fundamental law. “It is his right to have everybody know for what he is tried, and why he is condemned, and to witness the tone, manner, and temper of his prosecution, that he may be subjected to no other influence than truth and law; nor is he bound at all to trust the court or the judge in this matter. It is his great privilege, and no power can impair it: ” Kirk v. State, 14 Oh. 511. Although the accused may waive the right to be present in misdemeanors, yet the court cannot deprive him of it. Nor can its action in doing so (however well intended and however free from arbitrariness) be justified by balancing probabilities as to the injury done to him in the particular case.

“In all criminal prosecutions, the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face ” is the language of our Declaration of Eights, and by fair implication it secures the right to be present, not only when the witnesses are testifying, but also when the jury are being instructed as to their duties, and as to the facts and law of the ease. For, how can he be heard, if neither he nor his counsel has an opportunity to be present ? To deprive him of this priv *110 ilege is, of itself, error, if the instructions, although free from error, might have influenced the verdict against him. Such error cannot be wholly cured by putting -the instructions in writing after the rendition of verdict and allowing the defendant an exception; for, if he or his counsel had been present, explanatory instructions might have been asked and given, which, for aught we know, might have produced a different result. This consideration, alone, shows the importance of the right secured to the accused, if, indeed, argument be needed to prove it.

It seems hardly necessary to say, that instructions given to a jury after they have retired to deliberate upon their verdict, of the character of those embraced in the bill of exceptions, are as much a part of the trial as the original instructions. The reasons why the accused should have the privilege of being present are as vital in the former case as in the latter. As was said in a New York case, where this question was considered, they may “ influence the verdict quite as much, if not more, than the instructions given before the jury retired: ” Maurer v. People, 43 N. Y. 1 . We may fairly assume that they had an influence upon the verdict in the present case; for, although the jury had been out for twenty-four hours, they agreed upon a verdict within an hour after the additional instructions were given. We are not to be understood as intimating, even, that the presiding judge brought any improper influence to bear upon the jury, or that the instructions were erroneous in themselves. The question does not turn upon the legal correctness or incorrectness of the instructions, but upon the right of the trial judge, during the adjournment of court, in the absence of the accused and his counsel, and without attempt to notify either of them to be present, to give any instructions that might influence the jury to bring in a verdict against him.

So important to the accused is this right to be present when his case is being tried, that it was at one time held that neither he nor his counsel could waive it in any felony case. “ It is undoubtedly error,” said Chief Justice GfJBSON, “to try a person for felonjr in his absence, even with his consent. It would be contrary to the dictates of humanity to let him waive the advantage which a view of his sad plight might give him by inclining the hearts of the jurors to listen to his defense with *111 indulgence. Never has there heretofore been a prisoner tried for felony in his absence: ” Prine v. Com., 18 Pa. 103 . The Supreme Court modified this ruling, so far as it appliéd to the felony of larceny, to the extent of holding that “ voluntary absence when the verdict is received is an error of which he cannot complain:” Lynch v. Com., 88 Pa. 189 . Possibly there should be the same modification of the rule laid down by Chief Justice Gibson in other felonies triable in the quarter sessions. Be that as it may, in this case the defendant’s absence was not voluntary. He consented to nothing and waived no right; and no Pennsylvania case has held, or, as we firmly believe, ever will hold, that a defendant, whether indicted for a felony or a misdemeanor, can be tried in his absence, unless he has expressly or impliedly waived the right to be present.

Unquestionably the court has discretionary power, of its own motion, to recall the jury and give them further instructions, or withdraw or correct erroneous instructions. As far as we are informed the usage of the courts of the commonwealth has been to give such additional instructions only in open court, and this is the safer and the better practice. At all events this much is established by the overwhelming weight of authority that it is reversible error to give them after the adjournment of court in the absence and without the knowledge of the parties or their counsel: McNeil v. State, 47 Ala. 498 ; Collins v. State, 33 Ala. 434 ; Wade v. State, 12 Ga. 25 ; Fisher v. People, 23 Ill. 283 ; Crabtree v. Hagenbaugh, 23 Ill. 349 ; Fish v. Smith, 12 Ind. 563 ; O’Connor v. Guthrie, 11 Iowa, 80 ; Sargent v. Roberts, 18 Mass. 337 ; Merrill v. Nary, 92 Mass. 416 ; Read v. Cambridge, 124 Mass. 567 ; Benson v. Clark, 1 Cow. 258 ; Moody v. Pomeroy, 4 Den. 115 ; Taylor v. Betaford, 13 Johns. 487 ; Bank v. Mix, 51 N. Y. 558 ; People v. Maurer, 43 N. Y. 1 ; Hoberg v. State, 3 Minn. 262 ; Kirk v. State, 14 Ohio, 511; State v. Patterson, 45 Vt. 308 .

■ “ Against this weight of authority ” (quoting from the opinion of Mr. Justice Gbay in Read v. Cambridge, supra), “ the only cases brought to our notice which countenance a different rule are two in New Hampshire and one in S. Carolina. And in the latter the point adjudged related only to instructions as to. the form .of the verdict given by the judge to the foreman in open court; and the criticism upon the judgment of this court *112 in Sargent v. Roberts, ( 18 Mass. 837 ,) was based upon the singular theory that the intercourse between the jury and the bench is so confidential that often communications from the jury ought not to be disclosed to the bar.” The New Hampshire decisions called to our attention relate only to the practice in civil cases and do not discuss the right of the accused in criminal prosecutions. Moreover, if additional instructions are given during the recess the precaution is taken to put them in writing, and to require the jury to return them with their verdict; so that no question can ever arise as to what the instructions were. In Meece v. Com., 78 Ky. 586 , the additional instructions were given in open court; they were beneficial to the defendant; and his counsel was present. In Davis v. State, 14 Ind. 358 , the defendant had notice that the court would meet at the ringing of the bell.to receive the verdict. All that was decided in State v. Pike, 65 Me. 111 was, that “ there is no rule of law requiring the court to send for counsel who choose to absent themselves while their cases are being considered by the jury.” To the same effect is Com. v. Kelley, 165 Mass. 175 . “In contemplation of law the parties and their counsel remain in court until a verdict has been rendered, or the jury discharged from rendering one: ” Cooper v. Morris, 48 N. J. L. 607. Let this be granted; but surely it cannot be contended, that it is their duty to remain in the court room, after the court has been regularly adjourned for the day. None of these cases sustain the contention of the commonwealth in the present case.

The assignment of error under consideration is not based on a “ mere technical nicety,” but raises a question of substantial right, as well as a question of practice of the highest importance in the administration of criminal justice. If one instruction may be given in the absence of the accused and without his knowledge, there is no good reason why the whole of the instructions may not be given in his absence and without his knowledge. So also, if, after the regular adjournment of the court, in the absence, and without the knowledge, of the accused, or of his counsel, the trial judge may call the jury into the court room and there instruct them as to the law of the case, and as to the bearing of the evidence, we see no reason why he may not call them to his chambers, or go to their room for the same purpose. Conceding that the convenience of *113 jurors would sometimes be subserved if the trial judge had such power, and also that the power would be lodged in hands highly responsible for the exercise of it, nevertheless, it would be liable to abuse. It is better that jurors, in exceptional cases, suffer some slight inconvenience than that countenance be given to a practice, which, followed to its logical results, would destroy one of the safeguards of the accused, which reason and experience combine to show is of the highest value. It has been well said of another constitutional guaranty and may be said as appropriately here: “ It is the capability of abuse and not the probability of it, which is regarded in judging of the reasons which lie at the foundation, and guide in the interpretation of constitutional restrictions: ” Emery’s Case, 107 Mass. 172 . “ There is no more sacred duty of a court than, in a case properly before.it, to maintain unimpaired those securities for the personal rights of the individual which have received for ages the sanction of the jurist and the statesman; and in such cases no narrow or illiberal construction should be given to the words of the fundamental law in which they are embodied : ” Mr. Justice Miller in Ex parte Lange, 85 U. S. 163 .

We do not think we have overestimated the importance of the question; for we are firmly convinced that to hold the error complained of to be harmless would be, virtually, to deny the right of the accused to be present at an important part of his trial, and would establish a dangerous precedent, contrary to the just and humane principles of the fundamental law, and inconsistent with orderly procedure, and long established usage as shown by the adjudged cases. It is better that this case should be tried a third time than that such a precedent should be established.

The judgment is reversed and a venire facias de novo awarded.