Appeal from judgment of Court of Common Pleas of Mercer County, Sept. T., 1970, No. 18, in case of Commonwealth of Pennsylvania v. J. B. Moore.
Carl M. Moses, Assistant Public Defender, with him Warren R. Keck, III, Public Defender, for appellant.
Robert F. Banks, First Assistant District Attorney, with him Joseph J. Nelson, District Attorney, for Commonwealth, appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Pomeroy.
On December 10, 1970, the appellant, J. B. Moore, was convicted by a jury in Mercer County of voluntary
manslaughter. Post-trial motions were denied, and on June 29, 1972, Moore was sentenced to serve a term of imprisonment of not less than one and one-half and not more than three years in a state correctional institution. He was given credit for two hundred and nineteen days already served in the county jail. This appeal was then filed.
The prosecution followed the fatal shooting of one Ben Jones, in the living room of Moore's home.*fn1 Moore appeared intoxicated at the time*fn2 and no motive for the shooting was evident.
At the time of the occurrence, Moore's wife and Ernestine Kitt were in the kitchen of the house and did not witness the shooting. However, according to the trial testimony of Miss Kitt, who was called as a Commonwealth witness, both women rushed into the living room after hearing the shot and Mrs. Moore asked her husband, "why did you shoot Ben?" to which Moore replied "because he shot me."*fn3
Testifying on his own behalf, Moore stated the gun discharged accidentally when Robert Pritchett who was also in the living room at the time "grabbed the gun." He also said he did not realize Jones was shot until some time later.
Mrs. Moore was not called as a witness by either side, and in his summation the district attorney was permitted, over objection, to argue to the jury that Moore's failure to call his wife as a witness permitted the jury to draw the inference her testimony would be
unfavorable to his defense. In his charge the trial judge also instructed the jury such an inference was permissible.
Generally, when a potential witness is available to only one of the parties to a trial, and it appears this witness has special information material to the issue, and this person's testimony would not be merely cumulative, then if such party does not produce the testimony of this witness, the jury may draw an inference it would have been unfavorable. See McCormick, Law of Evidence, 534 (1954). See also Bentivoglio v. Ralston, 447 Pa. 24, 288 A.2d 745 (1972), and Commonwealth v. Wright, 444 Pa. 536, 282 A.2d 323 (1971). Accepting Mrs. Moore possessed information material to the issue instantly, the question remains, should this inference be permitted in a criminal case where the uncalled witness is the spouse of the defendant. We rule it should not.
In Pennsylvania a husband and wife are incompetent to testify against each other in a criminal trial except under certain limited circumstances, not relevant here. Act of May 23, 1887, P.L. 158, § 2(b), as amended, 19 P.S. § 683.*fn4 Under the facts of the instant case,
the operation of the evidentiary inference comes directly into conflict with the common law and the Pennsylvania statutory rule on incompetency of spouses. As far as we have been able to ascertain the last time this Court considered this question was in Commonwealth v. Weber, 167 Pa. 153, 31 A. 481 (1895),*fn5 and the Court therein ruled it was proper for the counsel for the Commonwealth to argue to the jury it might infer that if called the wife's testimony would be adverse to her husband. We have reconsidered the question, and now rule it was improper for the district attorney and the trial judge to advise the jury it could draw ...