The opinion of the court was delivered, by
Agnew, J.
— It is a general rule that a distinct crime, unconnected with that laid in the indictment, cannot be given in evidence against a prisoner. It is not proper to raise a presumption of guilt, on the ground, that having committed one crime, the depravity it exhibits makes it likely he would commit another. Logically, the commission of an independent offence is not proof, in itself, of the commission of another crime. Yet it cannot be said to be without influence on the mind, for certainly, if one be shown to be guilty of another crime equally heinous, it will prompt a more ready belief, that he might have committed the one with which he is charged ; it therefore predisposes the mind of the juror to believe the prisoner guilty. To make one criminal act evidence * of another, a connection between them must have existed in the mind of the actor, linking them together for some purpose he in- ( tended to accomplish ;ior it must be necessary to identify the person of the actor, by a connection which shows that he who committed the one must have done the other. Without this obvious connection, it is not only unjust to the prisoner to compel him to acquit himself of two offences instead of one, but it is detrimental to justice to burthen a trial with multiplied issues that tend to confuse and mislead the jury. The most guilty criminal may be innocent of other offences charged against him, of which, if fairly tried, he might acquit himself. From the nature and prejudicial character of such evidence, it is obvious it should not be received, unless the mind plainly perceives that the commission of the one tends, by a visible connection, to prove the commission of the other by the prisoner. If the evidence be so dubious that the judge does not clearly perceive the connection, the benefit of the doubt should be given to the prisoner, instead of suffering the minds of the jurors to be prejudiced by an independent fact, carrying with it no proper evidence of the particular guilt.
We come now to the offer of evidence received by the court. Leaving out that part relating to the prisoner’s first wife, which the court rejected as too remote, the offer was to prove that John Sharloek died from poison, the same kind of which Nancy, the prisoner’s wife, died; that his symptoms were the same as hers, that the prisoner attended upon both, and that both died at the [66]*66prisoner’s house; Sharlock on the 17th of February 1871, and Nancy, the wife, on the 11th of June 1871. In substance, this was an offer to show that the prisoner poisoned Sharlock, as evidence that he also poisoned his own wife. The purpose insisted | on, was to show a motive on the part of the prisoner for taking the life of his wife, and that the deaths were so connected that they formed one chain of facts, which could not be ascertained without rendering part of the evidence received unintelligible and incomplete. It is argued that the motive of the prisoner for taking the.life of Nancy his wife, was to enable him to obtain her money ; and to enable him also to marry Susan, the wife of John Sharlock, Avho had been the prisoner’s paramour, as the means of obtaining her money, which was in the form of an insurance policy, on the life of her husband, John Sharlock, and that in order to carry out this plan, it was necessary first to put Sharlock out of the way.
It is obvious that to connect together the deaths of Sharlock and Nancy, and make the former bear upon the latter, they must have been both contemplated by the prisoner as parts of one plan in his mind, in which the taking of Sharlock’s life was part of his purpose of taking the life of Nancy. He must, therefore, have contemplated the death of Nancy before taking the life of Sharlock. In otder to let in the poisoning of Sharlock, the judge must have had before his mind some fact or facts exhibiting this pre-existing determination to take Nancy’s life. Herein the evidence was defective. Let us examine the question of probable motive, and first as to the money of Nancy his wife. Now clearly it was not necessary to put Sharlock out of the way to obtain it. Sharlock’s death opened no door to reach it. Nancy’s death alone would bring it. The evidence was, therefore, inadmissible on this score. Then there was the prisoner’s illicit intercourse with Susan Sharlock. This was made the turning-point of the admission of the evidence by the court. But there was no evidence that the , prisoner at any time contemplated marriage with Susan, from which such an intent can fairly be inferred to have existed before Sharlock’s death ; yet this is the essential fact to make it probable, that the prisoner took Sharlock’s life, as preparatory to taking Nancy’s life, and as the means of enabling him to marry Susan. According to the evidence, the libidinous intercourse between him and Susan existed for years, during the lives of both his wives, without restraint, and Susan continued in his family after his marriage with Nancy, and her own marriage with John Sharlock. Nor was desire of the enjoyment of Susan, so long sated at pleasure, curbed by any new impediment, to make it a ruling motive; while the evidence also shows, that after the prisoner’s first wife’s death he purposely passed by Susan, when she was single, to marry Nancy, the second wife. Now’the meretricious intercourse [67]*67with Susan having existed so long, and when he could have gotten her, having left her to marry Nancy, and the opportunity of enjoying her still continuing, it is not a reasonable or probable presumption that the idea of marrying Susan was in the prisoner’s mind when he poisoned Sharlock, nearly four months before he poisoned his wife, so as to constitute a ruling motive to take the lives of both Sharlock and Nancy, as the means of marrying Susan.
Then we come to the pecuniary motive, viz., of obtaining Susan’s money. If the prisoner had been on his trial for the murder of Sharlock, his desire to obtain the policy-money dependent on Sharlock’s death, would constitute a motive for taking his life; but the question here being upon the probable motive for taking Nancy’s life, the inquiry is, what probable connection existed in the design of the prisoner to make Sharlock’s death preliminary to that of Nancy ? Let it be supposed that the purpose of the prisoner in taking the life of Sharlock, was to enable him to obtain Susan’s policy-money, yet it was not a necessary consequence that the prisoner deemed it essential to his plan that he should also take his own wife’s life. It is evident these two purposes cannot] be linked together, unless the prisoner considered his marriage/' with Susan necessary to obtain her money. Marriage with Susan must then have been a pre-existing intent, inducing him to framé in his mind the plan of taking the lives of both Sharlock and Nancy, to enable him to marry Susan and thus to obtain her money. But here the evidence fails to furnish the wanting link. There was no evidence, as we have seen, of any design to marry Susan, while it also appears that the prisoner had no cause to doubt his power to obtain possession of Susan’s money, in order to make marriage a ruling motive. On the contrary, the evidence shows that instantly on Sharlock’s death the prisoner took the steps to obtain the policy-money, and soon accomplished the purpose. The agent of the Insurance Company states, that when the money was paid to Susan she handed it to the prisoner, who put it into his pocket; and we find that afterwards he spoke of still having it, and offered to pay a debt for Susan.
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The opinion of the court was delivered, by
Agnew, J.
— It is a general rule that a distinct crime, unconnected with that laid in the indictment, cannot be given in evidence against a prisoner. It is not proper to raise a presumption of guilt, on the ground, that having committed one crime, the depravity it exhibits makes it likely he would commit another. Logically, the commission of an independent offence is not proof, in itself, of the commission of another crime. Yet it cannot be said to be without influence on the mind, for certainly, if one be shown to be guilty of another crime equally heinous, it will prompt a more ready belief, that he might have committed the one with which he is charged ; it therefore predisposes the mind of the juror to believe the prisoner guilty. To make one criminal act evidence * of another, a connection between them must have existed in the mind of the actor, linking them together for some purpose he in- ( tended to accomplish ;ior it must be necessary to identify the person of the actor, by a connection which shows that he who committed the one must have done the other. Without this obvious connection, it is not only unjust to the prisoner to compel him to acquit himself of two offences instead of one, but it is detrimental to justice to burthen a trial with multiplied issues that tend to confuse and mislead the jury. The most guilty criminal may be innocent of other offences charged against him, of which, if fairly tried, he might acquit himself. From the nature and prejudicial character of such evidence, it is obvious it should not be received, unless the mind plainly perceives that the commission of the one tends, by a visible connection, to prove the commission of the other by the prisoner. If the evidence be so dubious that the judge does not clearly perceive the connection, the benefit of the doubt should be given to the prisoner, instead of suffering the minds of the jurors to be prejudiced by an independent fact, carrying with it no proper evidence of the particular guilt.
We come now to the offer of evidence received by the court. Leaving out that part relating to the prisoner’s first wife, which the court rejected as too remote, the offer was to prove that John Sharloek died from poison, the same kind of which Nancy, the prisoner’s wife, died; that his symptoms were the same as hers, that the prisoner attended upon both, and that both died at the [66]*66prisoner’s house; Sharlock on the 17th of February 1871, and Nancy, the wife, on the 11th of June 1871. In substance, this was an offer to show that the prisoner poisoned Sharlock, as evidence that he also poisoned his own wife. The purpose insisted | on, was to show a motive on the part of the prisoner for taking the life of his wife, and that the deaths were so connected that they formed one chain of facts, which could not be ascertained without rendering part of the evidence received unintelligible and incomplete. It is argued that the motive of the prisoner for taking the.life of Nancy his wife, was to enable him to obtain her money ; and to enable him also to marry Susan, the wife of John Sharlock, Avho had been the prisoner’s paramour, as the means of obtaining her money, which was in the form of an insurance policy, on the life of her husband, John Sharlock, and that in order to carry out this plan, it was necessary first to put Sharlock out of the way.
It is obvious that to connect together the deaths of Sharlock and Nancy, and make the former bear upon the latter, they must have been both contemplated by the prisoner as parts of one plan in his mind, in which the taking of Sharlock’s life was part of his purpose of taking the life of Nancy. He must, therefore, have contemplated the death of Nancy before taking the life of Sharlock. In otder to let in the poisoning of Sharlock, the judge must have had before his mind some fact or facts exhibiting this pre-existing determination to take Nancy’s life. Herein the evidence was defective. Let us examine the question of probable motive, and first as to the money of Nancy his wife. Now clearly it was not necessary to put Sharlock out of the way to obtain it. Sharlock’s death opened no door to reach it. Nancy’s death alone would bring it. The evidence was, therefore, inadmissible on this score. Then there was the prisoner’s illicit intercourse with Susan Sharlock. This was made the turning-point of the admission of the evidence by the court. But there was no evidence that the , prisoner at any time contemplated marriage with Susan, from which such an intent can fairly be inferred to have existed before Sharlock’s death ; yet this is the essential fact to make it probable, that the prisoner took Sharlock’s life, as preparatory to taking Nancy’s life, and as the means of enabling him to marry Susan. According to the evidence, the libidinous intercourse between him and Susan existed for years, during the lives of both his wives, without restraint, and Susan continued in his family after his marriage with Nancy, and her own marriage with John Sharlock. Nor was desire of the enjoyment of Susan, so long sated at pleasure, curbed by any new impediment, to make it a ruling motive; while the evidence also shows, that after the prisoner’s first wife’s death he purposely passed by Susan, when she was single, to marry Nancy, the second wife. Now’the meretricious intercourse [67]*67with Susan having existed so long, and when he could have gotten her, having left her to marry Nancy, and the opportunity of enjoying her still continuing, it is not a reasonable or probable presumption that the idea of marrying Susan was in the prisoner’s mind when he poisoned Sharlock, nearly four months before he poisoned his wife, so as to constitute a ruling motive to take the lives of both Sharlock and Nancy, as the means of marrying Susan.
Then we come to the pecuniary motive, viz., of obtaining Susan’s money. If the prisoner had been on his trial for the murder of Sharlock, his desire to obtain the policy-money dependent on Sharlock’s death, would constitute a motive for taking his life; but the question here being upon the probable motive for taking Nancy’s life, the inquiry is, what probable connection existed in the design of the prisoner to make Sharlock’s death preliminary to that of Nancy ? Let it be supposed that the purpose of the prisoner in taking the life of Sharlock, was to enable him to obtain Susan’s policy-money, yet it was not a necessary consequence that the prisoner deemed it essential to his plan that he should also take his own wife’s life. It is evident these two purposes cannot] be linked together, unless the prisoner considered his marriage/' with Susan necessary to obtain her money. Marriage with Susan must then have been a pre-existing intent, inducing him to framé in his mind the plan of taking the lives of both Sharlock and Nancy, to enable him to marry Susan and thus to obtain her money. But here the evidence fails to furnish the wanting link. There was no evidence, as we have seen, of any design to marry Susan, while it also appears that the prisoner had no cause to doubt his power to obtain possession of Susan’s money, in order to make marriage a ruling motive. On the contrary, the evidence shows that instantly on Sharlock’s death the prisoner took the steps to obtain the policy-money, and soon accomplished the purpose. The agent of the Insurance Company states, that when the money was paid to Susan she handed it to the prisoner, who put it into his pocket; and we find that afterwards he spoke of still having it, and offered to pay a debt for Susan. It might be, if the prisoner found that Susan would not part with her money after she got it, ho then formed the design of marrying her to get it, and as the means of doing so then resolved to kill his wife. But this comes too late, for unless this purpose was present to his mind before he took Sharlock’s life, it could not constitute a motive and part of his plan to take his wife’s life also, so as to link the two deaths together. But in order to be present to his mind before Sharlock’s life was taken, he must have previously known or believed, or must have plainly foreseen he could not avail himself of Susan’s money without marrying her, and,.concluded to marry her, a fact unsupported by any evidence. The previous purpose to marry Susan is [68]*68the broken link in the chain to complete the connection, without which the deaths of both are not so probably connected, as to make Sharlock’s death evidence on the trial for the death of Nancy. It was therefore unjust to the prisoner to compel him, on his trial for the murder of his wife, to defend himself against the charge of murdering Sharlock. The offer should have been rejected.
The other errors assigned to the charge are not sustained. It is contended, and earnestly pressed upon us, that the judge had no right to say to the jury that if the prisoner was guilty of murder, it was murder in the first degree, and it was their duty to say so regardless of consequences. The indictment charged a murder by poison, and such was the tendency of the evidence. It was not only the right but the duty of the judge to inform the jury of the degree which the law attaches to murder by poison, and to instruct them in their duty under the law. It is only when the charge becomes imperative, and takes from the jury the right of deciding and pronouncing the degree of the murder, that we have held it to be error. When left free, as in this case they were, to decide the degree for themselves, we have not held it to be error to impress upon their minds the legal inference from the facts, and their duty to obey the law. But when, as in Rhodes v. Commonwealth, 12 Wright 896, and Lane v. Commonwealth, 9 P. F. Smith 871, a court addresses a jury authoritatively, and requires of them a verdict of murder in the first degree, it is error. Jurors uninstructed in their rights in a capital case, may feel themselves constrained by the peremptory direction of the judge. Both the cases referred to stood upon the same ground, and in both the error was the binding instruction of the court. The language in this case approaches closely the boundary line of peremptoriness, but we cannot say it overstepped it, in view of those parts of the charge which left them free to act for themselves. Jurors are so apt to lean _ away from a verdict of murder in the first degree, we must not scan too critically the language of the judge, if he has left them free to find the degree of the murder, on the evidence. None of the other'assignments of error require notice. The sentence of the Court of Oyer and Terminer is reversed, and a venire facias de novo is awarded, and the record is ordered to be remitted for a new trial.