Commonwealth v. Shearer

82 Pa. Super. 355, 1923 Pa. Super. LEXIS 316

• Court: Superior Court of Pennsylvania
• Decided: November 14, 1923
• Docket: Appeal, 13
• Status: Published

Opinions

Opinion by

Henderson, J.,

The defendant was indicted for procuring an abortion. He is a physician practicing in the City of Harrisburg. It was charged in the indictment that he performed an operation on one Lucy Strauss with intent to produce an abortion. The court having refused a motion for a new trial this appeal was taken. Evidence for the Commonwealth consisted of an antemortem statement made by the young woman and testimony tending to show that an abortion had been produced by the use of an instrument. The defendant denied that he had performed the act charged and alleged that he did not see the young woman at the time the operation was said to have been performed. The principal contention in the case was whether the evidence identified the defendant as the person who had committed the offense. The antemortem statement was written and presented to the young woman for her signature a short time before she died. In it she said that she had an operation performed by Dr. Shearer at Harrisburg, Pa., in his office on Saturday evening, October 15, 1921. She lived in Lebanon County, and it does not appear that she knew or ever had seen Dr. Shearer up to the time referred to in the statement. No witness was called who corroborated her with reference to the identity of the defendant or his participation in the act referred to in the statement. The whole case for the Commonwealth, so far as the connection of the defendant with the facts is concerned, rests on the antemortem statement. The Act of June 26,1895, P. L. 387, which makes such a statement competent evidence contains the proviso that, “no conviction shall be had upon the uncorroborated declaration of such woman.” It was not sufficient, therefore, to prove the antemortem statement. If we assume that the declarant knew the defendant and referred to him in her statement it is reasonable to hold that the corroboration called for by the statute must relate not only to the fact of the crime but to the participation of the defendant therein. While it is not necessary that every particular of the statement be established by independent proof, it is required that evidence be introduced corroborating in a material way the averments of the statement.' We held in Com. v. Keen, 7 Pa. Superior Ct. 293, in a case involving a similar charge that it [an antemortem statement] should not merely tend to prove that an offense had been committed but also tend to identify the defendant as the criminal or show his connection with the offense; and this was also held in Com. v. Kline, 66 Pa. Superior Ct. 285. In Watson v. Com., 95 Pa. 424, the subject of the corroboration of an accomplice was considered and it was there said, “It is almost the universal opinion that the testimony of the accomplice should be corroborated as to the person of the prisoner against whom he speaks. Some fact should be proved by testimony independent of the accomplice, which taken by itself leads to the inference not only that a crime has been committed, but that the prisoner is implicated in it. To prove that the accomplice had told the truth in relation to irrelevant and immaterial matters which were known to everybody would have no tendency to confirm his testimony involving the guilt of the party on trial.” While the young woman in this case was not an accomplice the reason of the rule above stated applies with equal force, to her statement for it is without weight in the trial of a case unless corroborated as required by the statute. It was thought by the learned trial judge that there was corroboration in the fact that the defendant had been the physician of Heffelfinger, who was named in the statement as the person who was present with her at Dr. Shearer’s office, but we regard the inference from that fact as top remote and extreme to be properly considered as corroboration of the act charged in the indictment. It does appear in the testimony that on one or more occasions, at times not stated, Heffelfinger had consulted the defendant personally, but there is no connection between those transactions and the charge now brought against the defendant. If, as the legislature intended, the antemortem statements should not be deemed sufficient evidence to support a conviction and that it must be corroborated, the conclusion seems unavoidable that the corroboration must relate to the guilt of the defendant and not simply to the commission of a crime: Roscoes Cr. Evidence, 120; Com. v. Bosworth, 22 Pickering 397; State v. Stewart, 52 Washington 61; Wharton Cr. Evidence, (10th Ed.) section 442. We have examined the evidence with care with a view to ascertaining what facts were disclosed which would support the antemortem statement with reference to the defendant, but there appears to be no corroboration except identity of name, and that clearly is insufficient: Fidelity Title and Trust Co. v. Illinois Life Insurance Co., 213 Pa. 425. The learned trial judge correctly instructed the jury that the evidence should not merely tend to prove that an offense had béen committed, but should also tend to establish the identity of the defendant as the criminal. The jury was then instructed to determine how far the declaration had been corroborated. This left wide latitude to the jury to determine what corroboration was and how it would be applied. But if there was no competent corroboration the defendant was entitled to the benefit of instruction to that effect. As there was no such evidence as was requisite to support a conviction, the defendant was entitled to instructions to that effect.

We are therefore required to reverse the judgment.

Judgment is reversed and the defendant discharged from his recognizance.