I have no difficulty whatsoever in concluding that the Act of July 3, 1947, P. L. 1239, amending the Act of March 15, 1911, P. L. 20, is both valid and enforceable.
Consequently, it is my opinion that the learned trial judge committed reversible error when he admitted in evidence proof of prior convictions of the defendant. Nor did his caution to the jury, not to consider such evidence except in connection with the question of penalty, if, and only if, they should first find the defendant guilty of murder in the first degree, absolve the error. Indeed, I am frank to confess my inability to understand how there can possibly be the slightest question as to the meaning and intent of the Act of 1947, supra, especially in the light of its background and legislative history which Section 51(7) of the Statutory Construction Act (46 P. S. § 551) bids us take into account if there be any inexplicitness in a law. Nor do I see how the title of the amendatory Act of 1947, supra, can be thought to offend against Article III, Section 3, of the Pennsylvania Constitution, particularly in view of the virile presumption in favor of the constitutionality of legislative enactments. Our duty is to sustain the Act as constitutional, if at all possible, and then to apply it faithfully according to its meaning and intent. What effect the statute has upon the trial of criminal cases is a matter which, presumably, the legislature fully pondered.
Under the Act of 1911, as originally enacted, a defendant in any criminal trial could not be asked in cross-examination, or required to answer, any question tending to show that he had committed, been charged with or convicted of any unrelated or unassociated offenses, or tending to show that he was of bad character unless either (1) he had sought to establish his good reputation or (2) had testified against a co-defendant charged with the same offense. As is well known, the Act of *Page 250 1911, supra, was copied after the English Criminal Evidence Act of 1898, 61 and 62 Vict., c. 36. The Act of 1911 omitted, however, a third exception specified in the English Act whereby evidence of prior offenses is admissible if it goes to show the defendant guilty of the offense for which he is currently on trial.
With the advent of the Act of May 14, 1925, P. L. 759, which conferred upon juries the power to fix the penalty for a conviction of first degree murder as between life imprisonment and death, this Court restricted the scope of the Act of 1911 by allowing the Commonwealth, in its case in chief in homicide trials, to show prior crimes of the defendant as an aid to the jury in fixing the penalty in the event of a verdict of guilty of first degree murder: Commonwealth v. Parker, 294 Pa. 144,151, 143 A. 904 (1928). A little later the Act of 1911 was directly nullified judicially in a case where the district attorney, on the trial of an indictment for murder, cross-examined the defendant in a manner designed to bring out his conviction of prior crimes. Even though neither of the exceptions under the Act of 1911, necessary to make such evidence admissible, were present, this Court found no error in the district attorney's cross-examination and upheld the defendant's conviction of first degree murder with penalty of death: see Commonwealth v. Flood, 302 Pa. 190, 194-195,153 A. 152 (1930). The opinion for this Court in the Flood case justified the ruling on the ground that the Act of 1925 had "modified" the Act of 1911 "as it relates to a phase of homicide trials." The anomaly of the situation is apparent when it is recognized that the Act of 1911 was not so "modified" with respect to trials for all other crimes.
Thus, despite the positive inhibition of the Act of 1911 and solely by virtue of court decision, evidence of prior unrelated or unassociated offenses became admissible either in the Commonwealth's case in chief or in *Page 251 cross-examination of the defendant. Thereafter and until the Act of 1947, supra, we had a situation in this State with respect to prior offense evidence, so made admissible against a defendant in a homicide case, that amounted to little less than a fanciful illusion. A jury was supposed to keep separate in its "adjudicating" mind the evidence it heard as to the defendant's guilt and, in its "penalty-fixing" mind, the evidence as to the defendant's prior unrelated criminal offenses. The thing could, and no doubt has, actually worked out in practice in a truly shocking way. It is not beyond the range of possibility that where, upon a trial for murder, the defendant's guilt is doubtful under the evidence, the balance may be tilted in favor of a conviction because of the subconscious effect of the impression made on the minds of the jury by the evidence of the defendant's prior criminal record. If anyone should think the possibility overdrawn, see observation by a Pennsylvania assistant district attorney in his complaint against the Act of 1947, supra, in 22 Temple Law Quarterly 220 (October 1948), where he says in the first paragraph that, — "Following the passage of the 1947 amendment to the Act of 1911 I have seen habitual criminals set free only because the jurors had no knowledge of the defendants' criminal records." In Commonwealth v. Williams, 307 Pa. 134, 151,160 A. 602, this Court observed the solemn fact that while the Act of 1925 is silent on the subject of admissibility of prior unrelated crimes, ". . . the fundamental objection to the introduction of such evidence is that the jury may be prejudiced by a familiarity with these prior convictions when considering the question of guilt or innocence."
But, such was the situation that was created by the practice under the Act of 1925, as permitted by the decisions in theParker and Flood cases, supra, and which the Act of 1947 was designedly passed to correct. Thenceforth, evidence of a defendant's prior offenses was not *Page 252 to be brought out either in cross-examination of the defendant or as a part of the Commonwealth's case in chief, except in the situations specified by the Act of 1911 to which the Act of 1947 added a third exception where such evidence is also admissible. The proscription ordained by the Act of 1911 related alone to evidence adduced in the cross-examination of a defendant, and very naturally so. Up until then, and for some time following, evidence of prior unrelated offenses was not thought of as being admissible on a trial for a subsequent offense except where there was evidentiary relation between the prior and subsequent offenses tending to show the defendant's guilt of the offense for which he was on trial: seeCommonwealth v. Weiss, 284 Pa. 105, 109-110, 130 A. 403, and cases there cited. The practice of receiving evidence of prior convictions in the Commonwealth's case on the question of penalty was, of course, new with the decision in the Parker case, supra, in 1928. Quite properly, therefore, when the question of revitalizing the Act of 1911 with respect to its prohibition of evidence of prior convictions upon cross-examination of the defendant (which the Flood case had allowed) came up for consideration, it was but logical to have the amendatory Act also abrogate the practice fathered by theParker case.
And so, the Act of 1947 was made to provide that "in the trial of any person charged with crime, no evidence [of prior convictions, etc.] shall be admitted . . . unless, — . . ." (Emphasis supplied). Then follow, in the Act of 1947, the two exceptions specified by the Act of 1911, where such evidence is admissible (see supra), to which provisions the amendment of 1947 added, to like end, a third exception which is substantially the exception in the English Criminal Evidence Act of 1898 which was originally omitted from the Act of 1911 as already mentioned. The new third exception in the Act of 1947 reads as follows: "The proof that he has committed *Page 253 or has been convicted of such other offense is admissible evidence as to the guilt or the degree of the offense wherewith he was then charged."
The learned trial judge thought the above-quoted provision "vague, indefinite and uncertain." With that, the majority opinion apparently agrees and further asserts that ". . . subsection 3 of the Act of 1947 is ambiguous and a prolific source of trouble in the administration of criminal justice." In my opinion, the provision is neither ambiguous nor troublesome. The fact of the matter is that, save for the three words "or the degree" contained in the third exception of the Act of 1947, the provision is identical with the first exception of the English Criminal Evidence Act of 1898. Indeed, when the bill was introduced in the legislature, the third exception of the proposed Act of 1947 was exactly the same as the first exception of the English Act. But, during the course of the Act's passage, the third exception was amended by the addition of the words "or the degree"; and, as so amended, the Act was finally passed and signed by the Governor. The reason for the amendment requires neither refined reasoning nor speculation for the discovery of the obvious answer. Unlike the English, we have two degrees of murder, and, inasmuch as first degree murder may depend upon proof of the defendant's perpetration or attempt to perpetrate a particular independent offense, the amendment was to make certain that the Commonwealth would not be prevented in any instance, because of the inhibitions of the Act, from showing the independent offense essential to making the homicide, charged, murder of the first degree. It should not be overlooked that the only place where the breakdown of the historically just provisions of the Act of 1911 has taken place has been exclusively in the field of homicide trials. What was more natural, then, than that any proof necessary to find a murder to be of the first degree should not be rendered inadmissible *Page 254 by virtue of any of the provisions of the Act of 1947? The words "or the degree" may not have been necessary to assure the desired eventuality, but they certainly do not detract from the Act or make it indefinite or uncertain.
Even should the third exception of the Act of 1947 be so unintelligible as to be unworkable (which, of course, it is not), the invalidity would attach only to the third exception. How could it possibly affect the balance of the Act which, elsewhere, makes inadmissible in the Commonwealth's case evidence of a defendant's prior offenses? The Act of 1911, with its two exceptions, stood on the books for years and was never assailed as unworkable; those two exceptions still remain in the Act of 1947; and the amended body is plain enough.
The obvious purpose of the Act of 1947 was to make inadmissible in trials for murder any evidence either in theCommonwealth's case or by cross-examination of a defendant concerning unrelated offenses except where such evidence is expressly allowed by one or more of the three exceptions specified by the statute. The Act had been deliberately introduced as a necessary complement of the anticipated operation of Section 701 of Senate Bill 306 of the same (1947) session, known as the "Crimes Act", which provided for "piecemeal" verdicts in murder cases. Unfortunately, the "Crimes Act" ultimately failed of passage. But, manifestly, that circumstance cannot reasonably be asserted as having had the slightest legal effect or influence on the validity of the complementary measure which did pass and became the Act of 1947, supra.
The question raised by the district attorney as to the constitutionality of the Act of 1947, supra, lacks merit. Incidentally, it is most unusual, to say the least, for a governmental law officer to question the constitutionality of an enactment of his own sovereign's legislative assembly. *Page 255
The title to the 1947 amendment does not offend against Article III, Section 3, of the Pennsylvania Constitution. Indeed, it is even more explicitly expressed than it would have needed to be in order to satisfy the constitutional requirement, the 1947 enactment being, as it is, an amendment and not an original Act. See Page v. The Williamsport SuspenderCompany, 191 Pa. 511, 518, 43 A. 345, where this Court said that the title to a supplementary Act of 1897 ". . . would have been good if it had ended with calling it a supplement to the act of 1869." With specific reference to the requirement of Article III, Section 3, of the Constitution, "the distinction between the title to an original act and that of a supplement . . ." has been noted: Provident Life Trust Company v. Hammond,230 Pa. 407, 412, 79 A. 628; Philadelphia v. Ridge Ave. Ry.Co., 142 Pa. 484, 491, 21 A. 982. And, of course, so far as the constitutional requirement is concerned, an amendment to an Act stands in no different relation to the original Act than does a supplement as to germaneness.
In the case of an amendment or supplemental Act, the test as to the sufficiency of the attempted compliance with the title requirement of the Constitution is the germaneness of the amendment or supplement. If the amendatory Act be germane to the Act to be amended, the title of the amending Act need contain no more than that it is an Act amending a certain portion of an Act of a designated date whose title it recites and then makes reference in general terms to the character of the amending extension. In Philadelphia v. Ridge Ave. Ry. Co., supra, this Court said (p. 491): "When an act of assembly is a supplement to a former act, if the subject of the original act is sufficiently expressed in its title, and the provisions of the supplement are germane to the subject of the original, the general rule is that the subject of the supplement is covered by a title which contains a specific reference to the original by its title, *Page 256 giving the date of its approval, and declaring it to be a supplement thereto" (Emphasis supplied). See also Blanchard v.McDonnell, 286 Pa. 283, 287, 133 A. 505; Goodwin v. CityCouncil of Bradford, 248 Pa. 453, 457, 94 A. 139; Allentown v.Wagner, 214 Pa. 210, 212, 63 A. 697.
The subject-matter of the amendment of 1947 was peculiarly germane to the Act of 1911. The original Act dealt with theinadmissibility in criminal trials of evidence designed tostultify the defendant on the basis of past offenses. The restriction of the Act of 1911 was, naturally, laid against evidence sought to be elicited in the cross-examination of the defendant. For, at that time, cross-examination of a defendant was the only way offering any opportunity to a prosecutor to introduce evidence of such character. The amendment of 1947 relates to precisely the same subject-matter, viz., theinadmissibility in criminal trials of evidence designed tostultify the defendant on the basis of past offenses. The restriction of the Act of 1947, however, was quite appropriately not limited merely to evidence sought to be elicited from the defendant on cross-examination, for, since the enactment of the Act of 1911, and by virtue of this Court's decision in the Parker case, supra, it had become the common practice for a district attorney to introduce in the Commonwealth's case in chief evidence of the defendant's unrelated offenses.
The title to the Act of 1947 reads as follows: "An Act To amend section one of the act, approved the fifteenth day of March, one thousand nine hundred eleven (Pamphlet Laws 20), entitled 'An act regulating in criminal trials the cross-examination of a defendant, when testifying in his own behalf,' by further providing what evidence is or is not admissible."
Thus, the title correctly states the very section of the original Act it was intended to amend; it accurately identifies the original Act by its date of passage and *Page 257 even its pamphlet law page number; it recites the title of the amended Act in full; and it then specifies that it amends the original Act "by further providing what evidence is or is not admissible." What this Court said in Gilbert's Estate, 227 Pa. 648,650, 76 A. 428, is especially apposite in this particular connection, — "This act [an amendment of 1909] amends sec. 1 of the act of 1833 and the title of the later act recites totidem verbis the title of the amended act and indicates ingeneral language the subject and nature of the amendment. This would seem to be a strict compliance with every requirement and there is no decided case in which there is even a suggestion that anything more is necessary to make a valid title to an act" (Emphasis supplied). The majority, I submit, misconceive the subject of the Act of 1911 to be the cross-examination of a defendant in a criminal trial when called to testify in his own behalf. In reality, the subject of the Act of 1911 is the inadmissibility of certain evidence in a criminal trial concerning the defendant. It is an evidence statute and so is the amendment of 1947 which relates exclusively to the inadmissibility of certain evidence in a criminal trial respecting the defendant. Under the majority view, it would never be possible to amend the Act of 1911 except in relation to the cross-examination of a defendant in a criminal trial when called to testify in his own behalf. My research has failed to disclose a single case in this State where the title of an original Act has ever been so narrowly restricted in its bearing upon a subsequent cognate amendment.
The majority opinion also mistakes, as I further submit, the test to be applied in determining whether the title of the 1947 Act is sufficient. The error is apparent where the majority opinion gives as an illustration of the specification required of a title the following: "An attorney engaged to defend a person accused of crime and who did not plan to call his client to the *Page 258 witness stand would, if he read the title to the Act of 1947 which purports to be only an amendment to the Act of 1911, conclude that he had no occasion to examine the body of the Act of 1947." The title to an Act is not required to be an index or synopsis of its contents: Commonwealth v. American Gas Company,352 Pa. 113, 118-119, 42 A.2d 161; Poor District Case (No. 1),329 Pa. 390, 399-402, 197 A. 334. "It has been decided over and over again", as was said in Gilbert's Estate, supra, at p. 650, "that the title need not be a general index to the contents of an act . . ."
The purpose of the constitutional requirement was that the title should give notice of the subject dealt with (in this instance, the admissibility and inadmissibility of certain evidence relating to the defendant in a criminal trial) so that a reasonably inquiring state of mind would lead one to examine the body of the Act: Kelley v. Earle, 325 Pa. 337, 353-354,190 A. 140, where it was said that, — "We have had this Article and Section [Art. III, Sec. 3] before us so often that it is scarcely necessary to discuss the subject at length: [citing cases]." The title is not supposed to be a compendium of information for the use of practicing attorneys after a bill has become law. The notice intended is for the benefit of legislators and all other interested persons during the passage of an Act so as "to prevent 'log-rolling' and fraud, trickery, or surprise in legislation": Buckalew on the Constitution, p. 68. For an interesting discussion of the true purpose of the particular constitutional provision see opinion of Chief Justice KEPHART in Commonwealth v. Stofchek, 322 Pa. 513, 517,185 A. 840.
In Provident Life Trust Company v. Hammond, supra, cited also by the majority opinion in support of its illustration above-quoted, the title of the Act there under consideration was defective because the date of approval of the original Act, as recited by the title of the amending Act, was incorrect. There was no such *Page 259 Act of such date and, of course, the title was fatally defective.
It is not disputed in the instant case that the fifteen separate indictments received in evidence against the defendant over his objection all covered unrelated crimes, — unconnected with the crime for which the defendant was on trial. They were, therefore, not admissible in evidence under any of the three exceptions specified in the Act of 1911 as now amended by the Act of 1947. As a consequence, their reception in evidence constituted fatal error and I would, therefore, reverse the judgment and remand the case for a new trial.