(270 Pa. 254)

facts merely awakening conjectures being inadmissible and the remoteness of the testimony or its significance furnishing aid in deciding the

COMMONWEALTH v. LOOMIS.

(Supreme Court of Pennsylvania. April 18, fact to be found being subject to the control of

1921.)

1. Criminal law 1043 (3)-Appellant, complaining of testimony, confined to specific objections made below.

Ordinarily an appellant complaining of the admission of testimony will be confined to the specific objections made below, unless the record is not clear as to the ground on which the complaint is based.

2. Criminal law 1186(4)-Technical defects disregarded in homicide cases.

In a homicide prosecution, the court will not be assiduous to discover technical defects. 3. Witnesses 41-Test as to competency of witness claimed to be insane stated. Testimony of a witness at a former trial offered in evidence because of the incompetency

of the witness under Act May 23, 1887 (P. L. 158, § 3; Pa. St. 1920, §§ 21842, 21843), will not be excluded on the ground of insanity of the witness at time the testimony was given, unless at the time of the examination the witness was incapable of understanding the nature of an oath and of intelligently testifying as to the facts he had observed.

4. Criminal law 542-Test as to incompetency of witness to render testimony at previous trial admissible stated.

The defendant in a criminal prosecution may prove facts not only to show the commission of the crime by another, but to negative the presence of some circumstance connected with the res gestæ, which would probably be present were the defendant guilty.

9. Witnesses 412-Facts corroborative of defendant's denial of guilt admissible.

A defendant is entitled to prove facts which do not in themselves establish innocence, but which corroborate the denial of guilt expressed under oath, and to fortify his own testimony by any circumstances and facts fairly tending to support him.

10. Homicide 170- Defendant's testimony that finger print on box was not made by him held admissible.

The testimony of a witness at a former In a prosecution for murder in which it was trial is not admissible on the ground of insan- claimed that the killing was the result of a ity of witness at time of subsequent trial un-robbery, and in which a tin box which had been der Act May 23, 1887 (P. L. 158, § 3, Pa. St. 1920, §§ 21842, 21843), unless at time of subsequent trial the witness was not capable of understanding the nature of an oath and of intelligently testifying as to the facts he had observed.

5. Criminal law 542—Adjudication as to accomplice's mental incompetency to make a defense not sufficient to prove incompetency justifying admission of former testimony.

Adjudication that an accomplice of the defendant was not mentally competent to make a rational defense under Cr. Proc. Act § 66 (Act March 31, 1860 [P. L. 427; Pa. St. 1920, § 14445]) without a general finding of insanity under Act June 13, 1836 (P. L. 592), was not in itself sufficient proof of his incompetency during the following year to warrant admission at such time of his testimony given during a former trial of the defendant prior to such adjudication under Act May 23, 1887 (P. L. 158, § 3; Pa. St. 1920, §§ 21842, 21843), providing for the admission of the testimony of a witness at a former trial if witness has become incompetent, without further proof of his incompetency at the time of the subsequent trial.

6. Criminal law 383, 384-Testimony too remote, or not raising a doubt as to defendant's guilt, inadmissible.

In a criminal case, defendant's testimony must be such as is calculated to fairly raise a doubt as to his connection with the transaction,

rifled by the robber was introduced in evidence, defendant's testimony that a finger print on the box was not made by him, though not of much weight, was admissible to corroborate his claim that he did not commit the robbery or rifle the box.

Appeal from Court of Oyer and Terminer, Northampton County; Russell C. Stewart, Judge.

Robert M. Loomis was convicted of mur der in the second degree, and he appeals. Reversed, and venire facias de novo awarded.

Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ.

Robert A. Stotz, of Easton, for appellant. T. McKeen Chidsey, Dist. Atty., and Charles P. Maxwell, both of Easton, for the Commonwealth.

SADLER, J. The facts surrounding the killing of Bertha Meyers have been narrated in an opinion filed by this court, when a former appeal by the defendant from a conviction of first degree murder was considered (Com. v. Loomis, 267 Pa. 438, 110 Atl. 257),

(113 A.)

and the details need not be repeated. Com- court fell into error when it failed to apply plaint is now made of alleged errors in the the same rule in passing upon the question second trial, which terminated in a verdict whether Shrope was incompetent when his of murder of the second degree. former testimony was offered in 1920. Its conclusion was based apparently on the adjudication of lunacy in 1919, and the admitted fact of insanity at the time of the second Loomis hearing.

Error was committed in the admission of the former testimony without the proof of Shrope's present incompetency. The fourteenth assignment must therefore be sustained.

finding of insanity under the provisions of stated, he could give a "perfectly lucid statethe act of June 13, 1836 (P. L. 592). The ad- ment." It is further to be noted that there judication was based upon section 66 of the was admitted in evidence a statement conCriminal Procedure Act; the purpose of cerning the crime, made by Shrope while this which proceeding was merely to determine trial was in progress. Before receiving the whether the prisoner was mentally compe- same, in answer to a question of the court, tent to make a rational defense. Com. v. the alienist testified that, though Shrope was Simanowicz, 242 Pa. 403, 89 Atl. 562; 16 C. J. | insane, he then had "ability to remember and 792. That statute did not contemplate a con- describe what he [had] heard." If this was clusive determination of insanity. Cf. Good-true, the witness could not be said to be inwin v. State, 96 Ind. 550; People v. Farrell, competent; and, if his evidence was desired 31 Cal. 576. In discussing the effect of a-and without it no conviction could have commitment of a proposed witness to an asy- been had-he should have been produced. lum, the court, in State v. Brown, 2 Marv. (Del.) 380, 393, 36 Atl. 458, 461, said in part: "The claim that the certificate itself affords a prima facie presumption of insanity to that extent is not warranted by either the purpose of the statute or the tenor of the certificate. The design of both is merely to provide for the admission of proper cases for care and treatment in this public hospital and to exclude all others. In purpose or effect it never was the legislative design to pass upon either the competency of a witness or the responsibility of one charged with crime. * 'Insanity,' as used in the certificate, may mean any form or degree of mental derangement, greater or less, which may, in the statutory contemplation, be proper for care and treatment in the hospital. It follows that said certificate does not necessarily warrant the presumption that the patient named therein is mentally incompetent to testify in any case. Therefore additional evidence is necessary to establish such incompetency."

Another complaint appearing upon the record requires consideration. It was the theory of the commonwealth that the deceased was murdered in the perpetration of a robbery. A description of the occurrence appeared in the testimony of Shrope, who told of the forcible opening of a tin box by Loomis, illustrating at the first trial how it was held by defendant. At this second hearing, the former evidence of Shrope was admitted. A witness was called who detailed how Shrope had held the box, when explaining to the jury on the former occasion the manner in which it was grasped by Loomis. Upon it were several marks, one a finger print at a point corresponding with the The only effect of the adjudication in place designated as that at which it was held Shrope's Case was to prevent his immediate by Loomis. At the first trial, experts had trial, and, in itself, was not sufficient to identified the finger print as that of the deshow him to have become incompetent, fendant. When the case was called a second thus justifying the admission of the notes of time, this position was abandoned, and the the former trial without further proof as to commonwealth offered no evidence in regard the actual mental condition of the witness. to it, admitting that the mark was not that The same conclusion would be reached though of the present defendant. the finding were treated as prima facie evi- He was then permitted to show that the dence of insanity; for, as already noticed, finger print was not made by him, not as proof of that fact is not in itself sufficient. furnishing proof of any substantive fact If actual incompetency had been shown, then by which to prove or disprove the matter the former testimony could have been receiv-in issue, but solely to impeach the credibility ed, for an examination of the record shows of Shrope. This limitation was emphasized an ample opportunity to cross-examine on the former trial, and, under such circumstances, it could not be said that the defendant was deprived of any substantial right. Com. v. Cleary, 148 Pa. 26, 23 Atl. 1110; Com. v. Keck, 148 Pa. 639, 24 Atl. 161.

Great harm may have been done in submitting Shrope's story to the jury through the medium of his former testimony, rather than in person. Had a preliminary investigation been made to show the possibility of his appearance, notwithstanding his mental disturbance, it would have revealed, as appeared from the testimony of the superintendent of the hospital, that he was much better, and was at that time in a "state of

in the charge, and the correctness of the view taken by the learned court is now the subject of question, raised by the second and third assignments of error. The same proposition is suggested in the fourth, based on the answer to the ninth point of the defendant, but this request could not have been affirmed, as binding instructions were asked.

[6, 7] In a criminal case, a defendant cannot establish facts which awaken mere conjectures; his admissible proof must be such as is calculated to fairly raise a doubt as to his connection with the transaction. On the other hand, nothing connected with the crime should be excluded from the consideration of the jury whether the tendency is to inculpate

(113 A.)

"It may be laid down that in no case is evi- | fortify his own testimony by any and all cirdence to be excluded of any fact or circum- cumstances and facts fairly tending to supstance connected with the principal transaction port him. Chitwood v. United States, 153 from which an inference as to the truth of a Fed. 551, 82 C. C. A. 505, 11 Ann. Cas. 814. disputed fact can reasonably be made." 8 R. C. L. 180.

Special latitude is permitted in the admission of evidence, where the proof upon which the commonwealth depends is circumstantial. Ward v. State, 71 Tex. Cr. R. 310, 158 S. W. 1126; Alexander v. United States, 138 U. S. 353, 11 Sup. Ct. 350, 34 L. Ed. 954. Wigmore Evidence, volume 1, § 139), in discussing the principle involved, says:

"If the evidence is really of no appreciable value, no harm is done in admitting it; while if it is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic, but should afford the accused every opportunity to create that doubt. A contrary rule is cruel to a really innocent

accused."

[10] In the present case, the commonwealth insisted that the killing was the result of a robbery. The tin box, which had been forcibly opened, was handled by some one, and around the rifling of it the case against the defendant was largely built. It was offered as part of the res gestæ at the first trial, and the finger print found thereon was proven to be that of Loomis. At the second trial it was in evidence, but the commonwealth admitted that the mark was not that of the defendant. Loomis denied that he had handled the box or committed the robbery, and it was some corroboration of his story to prove that the finger print was not made by him. This might have had little effect upon the jury, in view of the presence of the other blurred marks upon the box, but the defendable doubt it might raise. If weight is to ant was entitled to the benefit of any reasonbe given finger print testimony (State v. Kuhl, 42 Nev. 185, 175 Pac. 190; People v. Jennings, 252 Ill. 534, 96 N. E. 1077, 43 L. R. A.

[8,9] A defendant should be allowed to prove a fact which would logically produce a doubt of his guilt in the mind of the jury. The remoteness of the testimony offered, or its significance in furnishing aid in deciding the fact to be found, must, of course, be sub-N. S.] 1206; People v. Roach, 215 N. Y. 602, 109 N. E. 618, Ann. Cas. 1917A, 410), then the ject to the control of the court. Com. v. Ryan, 134 Mass. 223; Alexander v. United jury, in passing upon the guilt of Loomis, States, supra. Facts may be proven, not would have been justified in taking into cononly to show the commission of the crime by sideration the fact that some one else handled another, but to negative the presence of some the box, either at or about the time of the circumstance connected with the res gestæ murder. The testimony was not objectionwhich would probably be present were the able on the ground of remoteness, and, though defendant guilty. So it is proper for him to possibly not throwing much light upon the put in evidence his clothes worn at the guilt or innocence of the defendant, yet, on a time of a murder, which had been accom- trial for his life, he was entitled to the benpanied with the spilling of large amounts efit of any reasonable doubt which it might of blood, as some proof of the fact that raise in the mind of the jury. It should have he was not the assassin. People v. Jack-been permitted to consider this fact, with all son, 182 N. Y. 66, 74 N. E. 565. Such neg- the other evidence in the case, in passing ative evidence may raise a strong presump- upon the matter at issue. Assignments 2 and tion of innocence. 1 Wharton on Criminal 3 are therefore sustained. Evidence, 869, and cases cited. Likewise In view of the conclusions reached, the otha defendant is entitled to prove facts which er assignments of error need not be discussed. do not in themselves establish innocence, but The judgment of the court below is rewhich corroborate the denial of guilt ex- versed, and a venire facias de novo is pressed under oath. He has the right to awarded.

[3, 4] Appellee urges the small item of inWilliam F. Brennan, of Philadelphia, for terest and transfer charge cannot be set up appellant. as a breach, as the former was paid and tenJoseph J. Brown, of Philadelphia, for ap- der of both these sums was, and is now, pellees. made, though appellant refused to state the