The Ebensburg Alleghanian. [volume] (Ebensburg, Pa.) 1865-1871, 1866-04-12

cused should have an impartial trial by
| Jury, should have process for witnesses,
| and be entitled to counsel to examine them,
and to cross. examine those for the PROSE
cution, in the presence of 00hyFont1'g-
| the accused
and this is now our infexi5le rule.
have known one case in which a great
question was made whether a magistrates
written examination of a prisoner who
afterward broke jail and escaped, was
evidence against confederate under the
provisions of the statute Of I'd & Sd Phil
ip & Mary, ch. 10. The case did not reach
this Court, though the opinion of some
of the theE Judges were taken, and it was
finally decided that notwithstanding the
above named statute had been extended
to Pennsylvania, it was displaced by our
Constitution, and that no er parte testimo-
ny could be given against prisoner iu a
capital case. Such, then, is the meaning
of the Constitutional provision which
counsel invoke, and it is impossible to
apply it to exclude a juror witness. He,
like all other witnesses, must confront the
accused, that is, be examined in the pres
ence of the accused, and be subjected to
cross ss-examination, but he is not disquali-
fed to be a witness.
1t became necessary for the Common
wealth to show In the course of the trial
that the prisoners had been in the West
ern Penitentiary, and in intercourse with
other prisoners there, and particularly
one Philip Fulgert, a convict sent from
Cambria county, and from whom the
prisoners heard of Miss Paul-the theory
OF the prosecution being that the prison
ers had plotted the robbery aud murder
of Miss Paul whilst in prison, and that
they proceeded to execute the plot as soon
after their enlargement as circumstances
permitted. Sheriff Buck, who took Full
CERT to the Penitentiary, was called to
prove that fact, and David M'Kelvy
proved that the defendants had been in
the Penitentiary, and fixed the time Of
their discharge. This testimony was OBJ
| jected to, and forms the basis of the I'd
and 4th assignments, because the Warden
of the Penitentiary is required, by the
Act of Assembly of April 23d. 1929,
| Purdon G5l, TO keep Journal in which
the reception aud discharge Of prisoners
is regularly entered, and that record, it is
argued, was the best evidence of the facts
to which these witnesses swore.
! The Act of Assembly does not make
the Warden's journal a record, nor declare
that it shall be evidence of the facts
therein entered. The main purpose of
keeping it is to inform the Inspectors of
the prison of the name, age, condition and
circumstances of each prisoner, that their
duties may be intelligentiy performed. If
| the question had been whether Fugert
! and these defendants had been legally
Incarcerated, it might have been necessary
to show every iormality prescribed by law,
! but the main point was the conspiracy to
rob and murder, aud the fact of their
being together in the peniteutiary was
only Incidental or introductory to that
point. Says Mr.. Greenlief, vol. pl. 6S,
where the record or document appointed
by law is not part of the fact to be
proved, but is merely collateral or sub
sequent memorial of the fact, such as the
registry of marriages, births and the like,
it has not an exclusive character, but any
other legal proof is admitted. If the
marriage or birth of the prisoners had
| been wanted as Introductory 20 evidence
of the crime charged, it would scarcely be
argued that a witness who was present at
| the birth or, marriage was incompetent to
prove it because registry existed. In
questions of identity, records aid registries
are not the best evidence, for after the
entries are received, it is necessary to
individuate the persons mentioned, and
this must be done by evidence de h0rs the
| document We have an illustration in
the third error assigned, which complains
of the admission of the record of Fulgert's
! conviction and sentence without identif-
cation of his person. We do not mean to
| saw that we consider the Sd assignment
any better than the I'd aud 4th, but SIM
plg that it illustrates the necessity to add
even to judicial record oral evidence of
Identification. The record proved Full
eert's conviction and sentence, and Sheriff
Buck identified him as the individual he
took to the penitentiary, whilst M'Kelvy
identified defendants On trial as inmates
of the prison. We cannot be persuaded
that there was any error III submitting
such evidence to the jury.
The 5th.assignment relates to the Wit
ness William M'Creery; when this lndls
vidual was called by the Common wealth,
he stated in answer to questions by the
prisoners counsel, chat he had recently
got out of the peniteutiary, where he had
been confined ON conviction for burglary,
that he had been 10 before on a similar
charge, and had beer pardoned, aud that
the pardon was in Washington county
The counsel for the Commonwealth then
exhibited an Executive pardon for the
last offence, and the Court admitted the
witness. This is assigned for the 9th