Appeal, No. 221, March T., 1955, from judgment of Court of Oyer and Terminer and General Jail Delivery, Allegheny County, Sept. T., 1949, No. 103, in case of Commonwealth of Pennsylvania v. James Cannon. Judgment affirmed.
Walter T. McGough, with him Reed, Smith, Shaw & McClay, for appellant.
William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
Defendant was convicted by a jury of murder in the first degree "with life imprisonment". Defendant's motion for a new trial was denied and after judgment was entered this appeal followed.
The Commonwealth proved that defendant went to Stanley's Grill at about six o'clock on the evening of April 13, 1949, where he remained for several hours drinking beer and occasionally whiskey. At about 9:30 that evening he got into an argument with the bartender who called for Williams, the manager. Williams told Cannot that his drinks were shut off and that he would have to put him out. Cannon was then escorted to the door. Several seconds thereafter he reappeared, approached Williams, and when he was about five feet away pulled a pistol from underneath his coat and fired three shots into Williams' abdomen. Five witnesses testified that they saw the defendant in Stanley's Grill the night of the murder. Two witnesses testified that they saw defendant shoot and kill Williams. Williams made a dying declaration accusing defendant of his murder. Notwithstanding all this testimony, defendant - taking the stand in his own defense - denied that he had done the shooting or that he was in Stanley's Grill on the night in question. He testified that earlier that day he had left Pittsburgh by bus for Chicago after an argument with a girl friend with whom he had been living. He was a fugitive until he was apprehended in Cleveland, Ohio, on May 7, 1953.
Defendant alleges two important reasons for a new trial: (1) It was error to permit the Commonwealth to introduce evidence of defendant's prior conviction of manslaughter, (a) because the crime of manslaughter was not a crime of sordid passion or atrocity and the defendant was not a professional criminal, and (b) because defendant had been pardoned of the offense of manslaughter; and (2) The prosecutor's opening remarks to the jury were so highly prejudicial as to constitute reversible error.
In a trial sur an indictment for murder, the record of a former conviction of unrelated crimes is admissible in evidence, not for the purpose of influencing the jury (or the Court) in determining defendant's guilt or innocence of the crime for which he is being tried, but solely for the limited purpose of aiding the jury (or the Court) in determining the penalty to be imposed, in the event that the defendant is found guilty of murder in the first degree: Commonwealth v. LaRue, 381 Pa. 113, 120, 112 A.2d 362; Commonwealth v. Lowry, 374 Pa. 594, 603, 98 A.2d 733; Commonwealth v. Simmons, 361 Pa. 391, 401, 65 A.2d 353; Commonwealth v. DePofi, 362 Pa. 229, 66 A.2d 649.
Neither reason nor authority limit the admissibility of prior convictions to cases where the defendant was either a professional criminal or his crime was one of sordid passion.
In Commonwealth v. LaRue, 381 Pa., supra, the record which was admitted contained a conviction of defendant of only one crime, namely, armed robbery. In Commonwealth v. Simmons, 361 Pa., supra, a conviction of a conspiracy, and a conviction of a robbery were admitted in order to aid the jury in its function of fixing the penalty if they found the crime, as they did, to be one of murder in the first degree. In Commonwealth v. Lowry, 374 Pa., supra, a conviction of four separate
crimes of larceny was held to be admissible even though the District Attorney asked only life imprisonment. See also: Commonwealth ex rel. v. Smith, 324 Pa., infra.
In Commonwealth v. Turner, 371 Pa. 417, 88 A.2d 915, which is relied on by appellant, this Court held that the evidence of prior arrests was not admissible, but evidence of other crimes was admissible when limited "to prior convictions, confessions or admissions". The Court said (page 434):
"The Act of May 14, 1925, P.L. 759, as interpreted by this Court allows evidence of prior convictions so that '... the jury may have before it the past deeds of the accused that it may be fully advised of his nature and deserts when it fixes the penalty ...': Commonwealth v. Kuruts, 312 Pa. 343, 168 A. 28; Commonwealth v. Dague, 302 Pa. 13, 152 A. 839. ...
"'... The reason for the admission of such evidence was made clear in Commonwealth v. Dague [302 Pa. 13] supra, where we said: "... to enable the jury to know what manner of man the defendant was, if they should find him guilty of murder of the first degree, ..."'".
There is no merit in defendant's first contention.
That brings us to the second question involved - Can the Commonwealth offer evidence of a prior crime of which defendant was convicted but pardoned? It is important to note once again that this question arises only in connection with the fixing of a penalty, namely, death or life imprisonment. While the authorities throughout the country are in sharp disagreement as to the effect of a pardon, and while language may be found in some of our cases sufficiently broad to exclude the record of a pardoned crime, Pennsylvania has flatly ruled, at least for the limited purpose here involved, that the record of a prior crime of which defendant has been pardoned is admissible: Commonwealth
"A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed."
Appellant relies upon a dictum contained in Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, k84, 28 A.2d 897. In that case the Court sustained the constitutionality of the Parole Act, and by way of analogy, said (page 584): "There is a radical difference between a pardon and a parole. A pardon is the exercise of the sovereign's prerogative of mercy. It completely frees the offender from the control of the state. It not only exempts him from further punishment but relieves him from all the legal disabilities resulting from his conviction. It blots out the very existence of his guilt, so that, in the eye of the law, he is thereafter as innocent as if he had never committed the offense:** ...