The opinion
Dissenting Opinion by
Mr. Justice Musmanno:
Our state government is made up of three departments : the legislative, judicial, and executive. Each one has its own responsibilities and functions, and none has the right to take over powers and duties appertaining to the others. Thus, this Court cannot constitute itself a seven-man legislature and create laws. Yet, *406 from time to time, it does that very thing. It has done that in the matter which is the subject of the present appeal.
On May 14, 1925, the Pennsylvania General Assembly enacted a statute which reads, inter alia, “That every person convicted of the crime of murder of the first degree shall be sentenced to suffer death in the manner provided by law, or to undergo imprisonment for life, at the discretion of the jury trying the case, which shall fix the penalty by its verdict.” *
It will be noted that the statute says nothing about evidence, is utterly silent on the subject of procedure, is barren of any suggestion of change in the proof required to prove first degree murder, and offers no invitation to alter the accepted and established mode of establishing the crime charged and on which the jury is to render its verdict. This Court, in complete defiance of the plain intendment of the Legislature, has rewritten the statute so that it reads in effect: In the trial of any person charged with murder, the Commonwealth may introduce evidence of previous convictions so that the jury may determine, in the event they find the defendant guilty of first degree murder, whether the defendant should suffer death or life imprisonment. This rewriting of the statute, which was originally done in 1928, and has been affirmed by practically every group of judges forming the Supreme Court since then, represents to me an invasion of the Pennsylvania Constitution, a denial of due process guaranteed by the 14th Amendment to the Constitution of the United States, and a repudiation, without cause, of one of the most fundamental rules of criminal law and procedure. The present Court had an opportunity *407 in the instant case to bring the statute of 1925 back to what it was when it left the legislative halls on Capitol Hill, but it prefers to perpetuate the error of all the previous Courts and, by adding another affirmance of the unconstitutional procedure, solidify the mortar attaching this incongruous gargoyle of misconstruction to the beautiful temple of the law.
Nothing can be more firmly established in Anglo-American criminal procedure than the proposition that in a prosecution for a particular crime, a distinct crime unconnected with that laid in the indictment cannot be given in evidence against a prisoner as substantive proof of the crime for which he is being tried. It is simply elementary that in trying A for the alleged killing of X, it cannot be shown that some time in the past he robbed Y. All our authorities are in accord on this rudimentary proposition. * There are, of course, some exceptions to this rule but none of them apply in the case on appeal before us.
Cleveland Thompson, the defendant here, was indicted and tried on a charge of murder arising out of a killing which occurred in Pittsburgh on September 13, 1949. During the trial, the Commonwealth introduced a court record to show that in 1940, Thompson was convicted of a felonious assault and battery and was sentenced to the Allegheny County Workhouse for a term of from 6 to 18 months. It introduced also a court-martial record to the effect that on November 27, 1942, while Thompson was serving with the armed forces of the United States in England, he committed an assault with intent to commit murder on another soldier, and an assault with intent to commit bodily harm on two other soldiers. He was court-martialed for these offenses and was sentenced for an undisclosed period to a Disciplinary Center in Somerset, England. *408 The defendant objected to the introduction of these records.
It will be noted that the court-martial offenses occurred seven years prior to the killing of September 13, 1949, and the Allegheny County crime occurred nine years prior to the murder on which Thompson was being tried. In point of geography, chronology, and subject matter, these previous offenses had no possible connection with the killing in September, 1949. They Avere so remote in relevancy that they could have been committed by a different person entirely. It is unquestioned that prior to 1925 the record of these previous offenses could not have been introduced against Thompson. Even if Thompson were to have admitted committing them, he could still be innocent of the murder of September 13, 1949. The whole genius of our criminal law is predicated upon the proposition that every possible distracting and irrelevant fact must be excluded from a trial so that the jury may decide the immediate issue, entirely uninfluenced and unprejudiced by other unrelated and unconnected episodes.
The Commonwealth does not dispute that generally it Avould have no right to introduce the records mentioned. * It argues, however, that it was Avarranted and practically required to do so because of the Statute of 1925. Of course, the able and veteran assistant district attorney trying the case, Samuel Strauss, was only following what was laid down by this Court in 1928 in the case of Commonwealth v. Parker, 294 Pa. 144 , and echoed by this Court ever since. I submit that *409 when this Court decided that under the Act of 1925 the Commonwealth could demand a punishment for crimes which had already been adjudicated, it was not judicially deciding a case, it was legislating; it was not rendering a judgment, it was recording a legislative fiat; it was not acting upon precedent, it was proceeding under self-assumed powers. All this, of course, it had no right to do, even though no one could rise up to thwart this arrogation of authority.
The judicial personage most responsible for this deviation from the statutory path so clearly delineated by the Act of 1925 was Chief Justice von Moschziskeh. Writing for the Court, he said in the Parker case, that, because of the Act of 1925, the jury should be allowed “the same sort of information that a judge considers when deciding as to punishment for crime.” Of course, he possessed no authority whatsoever for such a pronouncement. To bestow on a jury the powers, authority, and responsibility of a judge requires more than the dictum of a justice of the Supreme Court, learned, conscientious, and dutiful as he may be. Chief Justice von Moschzisker said further: “Does not the discretion now vested in the jury as to the punishment to be administered dictate that there should be a more liberal rule of evidence applicable to a case like the present?” He then erroneously answered his self-asked question in the affirmative. Even if the stream of judicial interpretation were to be widened to the dimensions of the Mississippi at its greatest expansion, one could never find in the Act of 1925 the slightest suggestion, hint, or intimation that it authorized the liberalization of the rules of evidence. To widen the rules of evidence without authority is to remove trials from the courthouse to the market square where rumor, gossip, and the sheerest irrelevancy may condemn sovereign authority itself. *410 Chief Justice von Moschzisker would never have arrived at his illogical conclusion if he had given some attention to the purpose of the Act of 1925 and the meaningful history which preceded its enactment. The Act of 1925 had but one purpose, and that was to introduce for the first time in Pennsylvania the penalty of life imprisonment as punishment for first degree murder. The authors of that bill would certainly never recognize it in the form into which it was tortured by Chief Justice von Moschzisker and all the justices who have laid a hand to it since 1925.
For years, decades, and even centuries the debate had raged (which in many respects has not yet died away) as to the wisdom, humanity, and practicality of the death sentence. There were (as there are today) those who felt that in the interests of the protection of society, certain malefactors should be put to death. There were others who believed (as they believe today) that capital punishment offends against the Sixth Commandment, that if is not a deterrent, and that the act of the State in killing its citizens offers an example of brutality which can only have a degrading effect on the people at large. In America this debate began with the landing of the first colonists and it has continued to the present. Interest in the controversy has risen and fallen, depending on the state of the public affairs of the day. In Pennsylvania the forces working for abolition of the death penalty had on several occasions come within striking distance of their goal, but they were never able to muster enough votes in the Legislature to bring about an outright repeal of the death penalty. However, by 1925 they had gained some effective allies, not from abolitionists like themselves, but from the enemy camp, namely, those who still advocated the death penalty but were aware that frequently juries returned second degree murder verdicts *411 only because a first degree murder verdict meant death for the defendant. It was also known that juries often accompanied their vei'dicts of first degree murder with a recommendation of mercy because they found extenuating circumstances in the commission of the murder which should save the defendant from the ultimate penalty of death. Of course, despite such recommendation, the judge was compelled by law to impose the death sentence.
In 1925, then, the whole problem was settled by a compromise and there was born in Pennsylvania the statutory penalty of life imprisonment for murder. This was done without abolishing the death penalty because the jury trying the case was empowered to decide whether the punishment in that particular case should be life imprisonment or death. It was left to the jury making the decision to reach its conclusion on the evidence in that case. Not on other evidence. Not on extraneous episodes. But on the same evidence which would sustain the verdict of first degree murder. Since, prior to 1925, juries could and did return verdicts of first degree murder (which meant death) without hearing evidence on unrelated prior convictions, why would it be necessary, now that they were allowed to return a lesser penalty, to hear evidence in magnification of the prisoner’s criminality?
Throughout the entire controversy, both in the Legislature and in the forum of public discussion, so far as I have been able to discover, not once was it suggested by anyone that in a murder case the jury was to sit as the Great Judge on Judgment Bay to render judgment on the accused’s whole life. So far as procedure was concerned, the law was to remain as it always was, namely, the jury would pass only on the issue presented to it by the indictment. Let us look again at the Act of 1925: “That every person convicted *412 of the crime of murder of the first degree shall be sentenced to suffer death in the manner provided by law, or to undergo imprisonment for life, at the discretion of the jury trying the case, which shall fix the penalty by its verdict.” Without looking through the spectacles of a Draco, can anyone discover in these words, as transparent as a freshly washed window, anything about liberalization of the rules of evidence? Does not this statute, in terms as plain as the sun in the heavens, state that the jury trying the case shall decide the penalty of life and death on the same evidence which carried the jury to the conviction of first degree murder?
Does this unostentatious statute perform the Herculean task of tearing down the walls which have always protected the accused from extraneous influences? If so, how?
Chief Justice von Moschziskeb embarked on an intellectual excursion all his own when he said in the Parker case: “The Act of 1925 was not passed to help habitual criminals, and we take judicial knowledge of the fact that offenders of that designation have become so general that the laiv, not only lex scripta but non scripta, must advance to protect society against them.” To say that the Act of 1925 was not passed to help habitual criminals is merely a satirical audacity. Of course, it was n.ot passed to help habitual criminals, but neither was it passed to deny to the accused in a criminal trial those safeguards which have been guaranteed to all accused from the earliest days of the common law. Many of the decisions of this Court, including the present one, which have followed the Parker case have quoted von Moschziskeb-’s outburst of satire, but such fulminations against criminals do not aid in the dispassionate determination of guilt and innocence.
*413 It is true that in order to arrest the progress of crime, criminals must be withdrawn from society, just as in arresting the progress of cancer it sometimes becomes necessary to amputate a limb or remove an important organ. But such amputation and such removal is not ordered by the consulting physicians and surgeons until there remains no doubt that the limb or organ is incurably affected. To say that the Act of 1925 was passed to protect society against criminals is to put the moral cart before the just horse, because the duty of the jury is to determine if the accused is guilty of the crime with which he is charged and not to decide whether he should be eradicated from the living on account of offenses he has committed in the past, for which, incidentally, he has already paid his debt to society.
The Majority Opinion says in the case at bar that: “For almost three decades in Pennsylvania it has been a well established and recognized rule of law that evidence of prior offenses committed by the defendant, whether proven by records of prior convictions, by written or oral statements made by the defendant or elicited upon cross-examination of the defendant, is admissible in a homicide trial.”
In the history of the law, three decades is a very short time, but even if the indicated practice had existed for centuries and it was founded on an unjust premise, it still would be wrong. Age does not give strength to a crumbling viaduct, nor does the concealing ivy of years repair the rent beneath.
What this Court says in effect is that if the murder of which the defendant is convicted is of a comparatively mild character, one which merits only life imprisonment, the Commonwealth may introduce evidence of some robbery or burglary committed by the defendant ten or twenty years before, and this knowledge *414 may supply to the jury the necessary emotional anger which will impel them into returning a verdict with the death penalty. Of course, the defendant would already have expiated this previous offense or offenses, but that does not matter. Pie must still go on answering until he is dead, by natural causes or otherwise. If this is the reasoning behind this Court’s interpretation (or rather re-writing) of the Act of 1925, what then happens to the doctrine of expiation and of reformation? Does it mean that once a person transgresses the law of the land, he must carry around his neck a knotted rope which may be pulled taut any time he gets into trouble again? This Court has gone so far as to say that even if a convicted felon receives a pardon from the sovereignty of the State, the fact of his conviction may still be introduced as evidence against him in any future criminal trial in which he is a defendant! *
The prior record doctrine enunciated in the Parker case was re-affirmed in Commonwealth v. Mellor, 294 Pa. 339 , Commonwealth v. Dague, 302 Pa. 13 , and Commonwealth v. Flood, 302 Pa. 190 . And then came the vital case of Commonwealth v. Williams, 307 Pa. 134 , decided in 1932, in which Justice Kephart (later Chief Justice) reviewed the previous cases with approval and added an additional reason for broadening the rules of evidence in applying the Act of 1925. He said that the jury should be permitted to hear the defendant’s prior record “in aggravation of the penalty.” ** But if the death penalty is at all in order, it is authorized because the facts of the indicted crime dictate the death penalty, not because other unconnected events are supposed to “aggravate” the penalty.
And then, if evidence may be presented by the Commonwealth to “aggravate” the penalty, why shouldn’t *415 the defendant be allowed to introduce evidence to mitigate the penalty? Justice Xephart saw many difficulties in allowing proof of mitigating circumstances in that case. He said: “If such evidence as here offered is admitted in mitigation of the penalty, there would be no end to the testimony that might be produced in a homicide case, nor would there be any limit to the collateral issues that the jury might be called upon to consider; the Commonwealth’s ease under such rule would be in grave danger of being lost sight of.”
If “mitigating” circumstances will introduce collateral issues, do not “aggravating” circumstances also introduce collateral issues? This very discussion on mitigation and aggravation of penalty shows into what a labyrinth this Court has led the law by refusing to take the Act of 1925 as it was written. Chief Justice von Moschzisker first left the highway of statutory exactness, Chief Justice Xephart took the law deeper into the woods of incongruity, but Chief Justice Maxey headed an expedition into the quagmire of contradiction and confusion, and then, becoming lost, refused to accept the compass and lantern supplied by the Legislature which would have brought the law back to the terra firma of reasonableness and precision. All of which will be demonstrated later.
One of the proudest boasts of our whole system of civil and criminal procedure is the zealous manner in which we prevent diversionary streams from pouring into the main current of a lawsuit, contaminating and confusing the main issue. What is the issue in this case of Commonwealth v. Thompson? It is not whether Thompson’s whole life has been such that he should be permanently and irrevocably removed from society, but whether he committed a certain murder in the city of Pittsburgh on September 13, 1949. Instead of keeping the evidence within the channel of that inquiry *416 the Trial Court broke down the barriers of bordering pools and mud ponds, mixing and tainting the waters of the main controversy so that no one can now tell how much of the jury’s verdict was based on the evidence of the indicted murder and how much ivas based on what Thompson did in England seven years before.
In allowing this irrelevant flooding of the main issue, the Trial Judge, of course, was merely obeying what this Court has been saying since 1928. He was following what Justice Kephart said in the case of Commonwealth v. Kurutz, 312 Pa. 343, 348 , namely, that the jury should “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 to be suffered by him.” In that case the Commonwealth was allowed to show that prior to the killing, which was the subject of the trial, the defendant had fired a revolver at his first wife after she had procured a divorce against him. This episode had not the slightest relevancy to the killing on which he was tried. But, thrown in to the mainstream of the trial as it was, how can we be certain that the jury did not find the defendant guilty of murder more because of the fact that he attempted to shoot his divorced wife than that they believed he merited the death sentence because of the killing which was the subject of the indictment?
It is utterly amazing to me with what insouciance this Court overthrew in 1928 one of the most formidable guarantees of a fair trial and how it has gone on complacently approving this violent displacement of a rule, without which a fair and just trial is impossible. Justice Jones (now Chief Justice), in the case of Commonwealth v. DePofi, 362 Pa. 229, 251 , to which reference will be made later in extenso, made this trenchant observation: “The thing [introduction of a previous criminal record] could, and no doubt has, actually *417 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.”
Justice Bell, in the case of Commonwealth v. Lowry, 374 Pa. 594, 603 , said that “many Judges, including the writer of this opinion, believe that a record of prior crimes should not be admissible even under the theory of aiding the jury in fixing the penalty as permitted by the Act of May 14, 1925, P. L. 759.” He went on further to say, however, that “this Court has repeatedly held such records to be admissible for the limited purpose of aiding the jury in determining the penalty if they find a defendant guilty of murder in the first degree.” Justice Bell thus felt we are bound by the prior pronouncements of this Court on the subject. I believe those pronouncements wrong, and to have been wrong from the beginning. Therefore, they should no more be followed than a motorist should obey a road sign which leads to a visible precipice. The time has indeed come, with a fresh reappraisal, to repudiate Co mmonwealth v. Parker, to overrule Commonwealth v. Mellor, to negative Commonwealth v. Flood, to reject Commonwealth v. Williams, to annul Commonwealth v. DePofi, and to disclaim all other cases which have given spurious authority to the revolting proposition which says that a defendant on trial for his life may be crippled by evidence which has no bearing on the indictment, which he is unable to combat, which prejudices him in the eyes of the jury, and eventually subjects him to a verdict not dependent alone, if at all, on the facts of the crime with which he is charged.
*418 Not only is the prior record rule, as here outlined, bad, but it gets worse with the passage of time. Abuse feeds on abuse. Usurpation knows no verge. The story of the camel that asked only for shelter for his nose and finally pushed his master out of the tent has its counterpart in nearly every field of endeavor. In the case of Commonwealth v. Williams, 307 Pa. 134 , it was said that the admissible prior record must be limited to crimes “committed for profit, such as the crimes of highway robbery, burglary, murder for life insurance, bank holdups, and the like, and that the criminals are habitual offenders against society.” It will be noted that, in order to make that prior record available, two elements had to concur: serious crimes as enumerated and the criminal must be a habitual offender against society. There is nothing in the testimony presented in this case which establishes that Thompson was a habitual offender against society. Thus, the rule which was indefensible from the beginning is now being extended to an even more indefensible degree. In Commonwealth v. Simmons, 361 Pa. 391 , the rule was accepted as satisfied with the .showing that the defendant had committed a robbery. In Commonwealth v. Lowry, 374 Pa. 594 , the Commonwealth was permitted to show that the defendant had previously committed four larcenies. In Commonwealth v. LaRue, 381 Pa. 113 , it was shown that the defendant had previously been convicted of one armed robbery. Then in the case of Commonwealth v. Cannon, 386 Pa. 62 , this Court threw off all restraint and laid down the astounding proposition that: “Neither reason nor authority limit the admissibility of prior convictions to cases where the defendant was either a professional criminal or his crime Avas one of sordid passion.” In other words, there is no limit to Avhat may be introduced in the Avay of irrelevant crimes, so long as it may stir the jury into *419 rendering a verdict with the death penalty, while adding unjustified strength to the Commonwealth’s case against the defendant on the indicted crime.
It might be in order here to take a look back to see how this Court has got itself into its present untenable position. Up until 1909, there was never any doubt that the law in Pennsylvania prohibited the Commonwealth from dragging into a criminal trial, evidence of prior crimes entirely disassociated from the crime which was the subject of the trial. In that year, 1909, in Lawrence County, in the murder case of Commonwealth v. Racoo, 225 Pa. 113 , the district attorney prosecuting the case decided to circumvent the rule prohibiting the introduction of a prior record, by asking the defendant whether he had not already been convicted of crime. The defendant did in fact have a criminal record. The district attorney’s question thus threw him on to the horns of a double dilemma. If he denied the prior record he would be guilty of perjury. If he admitted it, he lessened his chances for an acquittal of the crime for which he was then being tried. His counsel objected to the question, was overruled, and the defendant compelled to answer. He was convicted. Thus the district attorney was permitted to bring in by the back door of cross-examination what the law for centuries had kept away from the front door of direct evidence. On appeal, this Court affirmed the conviction by explaining that when the defendant offered to testify in his own behalf, his credibility became a question for the jury. Justice Brown, writing for the Court, said further: “Under our statute permitting him to testify no restriction was placed upon the limit of his cross-examination.” This, of course, was sheer sophistry, because all limitations to cross-examination which appear in the law of the land must perforce remain, unless specifically eliminated which they certainly were *420 not in the statute referred to. The Racco decision met with much criticism at the bar and in the Legislature. Accordingly on March 15, 1911 (P. L. 20), the General Assembly passed an Act to prevent a repetition of the Racco performance. It read: "An Act Regulating in criminal trials the cross-examination of a defendant, when testifying in his own behalf. Hereafter any person charged with any crime, and called as a witness in his own behalf, shall not be asked, and, if asked, shall not be required to answer, any question tending to show that he has committed, or been charged with, or been convicted of any offense other than the one wherewith he shall then be charged, or tending to show that he has been of bad character or reputation; unless, — One. He shall have at such trial, personally or by his advocate, asked questions of the witness for the prosecution with a view to establish his own good reputation or character, or has given evidence tending to prove his own good character, or reputation; or, Two. He shall have testified at such trial against a co-defendant, charged with the same offense.”
This statute barred the back door as well as the front door, and balance was restored in this department of the criminal law. In January, 1923, in the case of Commonwealth v. Gibson, 275 Pa. 338 , this Court, speaking through Justice Walling, re-affirmed the ancient rule that a defendant can only be prosecuted on the charge for which he is standing trial. In that case, the sister of the defendant, indicted for murder, was asked if the defendant had not been convicted of shooting another member of the family. Objection was made by defense counsel, but the witness was required to answer. The defendant was convicted and appealed, in reversing the conviction, Justice Walling said: “The statement, however, brought directly to the knowledge of the jury, not only the fact that defend *421 ant had shot his brother but also that he had been convicted of it. This was a violation of the fundamental principle that in the trial of a prisoner for one crime the Commonwealth cannot introduce evidence of his guilt of another independent crime.”
Then came the Act of 1925, and the sharpening of the quill by Chief Justice von Moschzisker. We will remember that the Act of 1925 said nothing about pri- or records or cross-examination. It was not an evidence statute at all. Chief Justice von Moschziskerj’s rewriting of that statute was bad enough, but Justice Kephart (later Chief Justice) went further. In 1930, through the case of Commonwealth v. Flood, 302 Pa. 190 , he unlocked the back door which had been sealed by the Act of 1911. In that Flood case, the district attorney asked the defendant on cross-examination a question intended to develop an answer which would show the defendant had committed another crime, entirely disassociated and separate from the offense for which he was in court. The defendant objected, lifting in protection the shield of the Act of 1911 which forbade in so many words exactly what the district attorney was doing. The objection was overruled and, on conviction, the defendant appealed to this Court, where the shield was splintered. Justice Kephart, speaking for the Court, said that so far as murder cases were concerned, the Act of 1911 was nullified by the Act of 1925.
I repeat once more the Act of 1925: “That every person convicted of the crime of murder of the first degree shall be sentenced to suffer death in the manner provided by law, or to undergo imprisonment for life, at the discretion of the jury trying the case, which shall fix the penalty by its verdict.” Does this Act say anything about repealing the Act of 1911? Does *422 it say anything about extending the scope of cross-examination?
The Legislature must have been considerably annoyed at what the Supreme Court was doing in the name of law-interpreting. And so, to end the Court’s invasion of the rights of accused persons, it passed the Act of July 3, 1947 (P. L. 1239), which revived the Act of 1911 and served notice on the Supreme Court that it must no longer tamper with the fundamental guarantees of the people of Commonwealth. The Act of 1947 proclaimed that “In the trial of any person charged with crime, no evidence shall be admitted which tends to show that the defendant has committed, or has been charged with, ,or has been convicted of any offense, other than the one wherewith he shall then be charged, or that he has been of bad character or reputation unless,
“One. He shall have at such trial, personally or by his advocate, asked questions of the witness for the prosecution with a view to establish his own good reputation or character, or has given evidence tending to prove his own good character or reputation; or,
“Two. He shall have testified at such trial against a co-defendant, charged with the same offense.
“Three. The proof that he has committed or has been convicted of such other offense is admissible evidence as to the guilt or the degree of the offense wherewith he is then charged.”
Then came the monumental case of Commonwealth v. DePofi, 362 Pa. 229 . At the trial of that murder case the district attorney, in spite of the Act of 1947, introduced in evidence 15 indictments on prior offenses, none of which was connected or related in any way to the crime for which DePofi was being tried. Upon conviction the defendant appealed, assigning as error the production of the prior record indicated. This Court *423 affirmed the conviction in an Opinion which abounds with illogicalities, non sequiturs, and casuistries on nearly every one of its 18 pages. Chief Justice Maxey, author of the Opinion, declared the Act of 1947 to be unconstitutional on the assertions (1) that it violated Article III, Section 3 of the Pennsylvania Constitution which requires the subject of a statute to be expressed in the title and (2) that it was vague and uncertain and therefore inoperative.
Chief Justice Jones (then Associate Justice), in a very powerful Dissenting Opinion, completely devastated both of the Majority arguments. So far as the title was concerned, he pointed out that the Act of 1947 was an amendment to the Act of 1911 and, when an amendment is germane to the subject matter contained in the original act, it is enough, in the title of the amendment, to specify the particular Act it amends. The title to the Act of 1947, was very specific: “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.” Nor can it be doubted that the subject of the Act of 1947 was germane to the Act of 1911 since it particularly had to do with evidence admissible in criminal cases.
The other reason announced by Chief Justice Maxey in declaring the Act of 1947 unconstitutional lacked even less merit than the one just described. He found that subsection 3 of the Act was “ambiguous and a prolific source of trouble in the administration of criminal justice.” Chief Justice Jones, in his Dissenting Opinion, found nothing ambiguous in the subsection indicated, nor do I, but even if it were to be admitted, arguendo, that subsection 3 presented difficulties, there *424 certainly was no question about the clarity, directness, and efficacy of subsections 1 and 2 which, in themselves, would have excluded DePofi’s previous record. As Chief Justice Jones so cogently put it: “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 the Commonwealth’s ease 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.” (Italics in original.)
Chief Justice Maxey, in building his argument of affirmance of the DePofi conviction, did not fail to use as one of his main props the same moth-eaten, tottering pillar, which had been hammered together by Chief Justice von Moschzisker 21 years before, namely, that “the Act of 1925 was not passed to help habitual criminals.” * Who would know better than the Legislature what was the intendment of the Act of 1925? But even if it were to be admitted, for the purpose of hypothesis, that von Moschzisker’s sarcastic jibe had some substantial meaning, it would have to be conceded that the Legislature had the same source of knowledge and data *425 on criminal procedure as was available to the Supreme Court. Thus, whatever the situation happened to be in 1925 and the years following, the Legislature was aware of it. Accordingly, when it passed the Act of 1947, it certainly intended that the Courts should respect the expression of the sovereign power of the Commonwealth and see to it that in murder trials the prosecution would not introduce prior records, regardless of the interpretation which had been placed on that Act by the Supreme Court. From 1928 to 1947 the Legislature had had nearly 20 years to observe the effects of the Parker decision. The Act of 1947 was based on the knowledge of what had happened in those 20 years. The action of this Court then, in the DePofi case, in striking down the statute of 1947 was sheer judicial usurpation, which action has not gained any added dignity because it is cloaked in the dust of ten years.
There is another and even more impelling reason why this Court should repair the distressing damage which has been done by the Parker decision and those which have stumbled in its train. Every Opinion writer of this Court who has attempted to justify a procedure which on its face is not entirely satisfactory, not entirely fair, and not entirely just, has asserted that when a prior record is used, it is used only for one purpose, namely, to assist the jury in deciding the penalty — after they have determined the first degree murder guilt. The Opinion writers have assured the legal world that under no circumstances must the jury consider the prior records as evidence in determining the guilt or innocence of the defendant on the charge for which he is standing trial. Not one of these Opinion writers, however, has ever explained how the cat Avas to be belled. To say that a jury Avill consider the prior record if, and only if, it first decides the defendant is guilty of the indicted crime, is an equivocation which *426 amounts almost to a deception. Let us look at what happened in the case at bar in this respect.
The Thompson murder trial began on May 21, 1956. On May 24th, three days later, the Commonwealth introduced the record of the previous offenses. The trial ended on May 29th. Thus, for five continuous days, the jury saw the defendant through the blackening screen of his previous record. During all the time that the defendant was presenting his defense on the charge of the murder committed in September, 1949, the jury was thinking of what he had done in November, 1942. Strive as hard as they might, how could they sweep from their minds the consciousness and the knowledge that they were trying a man who already had been condemned by the law?
The Majority Opinion says that the trial judge must emphasize to the jury that they are to limit their consideration of the prior record to a determination of the penalty. How much did the Trial Court in this case emphasize that point? This is what the Court said: “You are informed that these records cannot be considered by you in passing upon the question of the guilt or innocence of the defendant; and you must clearly understand that. The question of guilt or innocence must be determined under the evidence in this case, without consideration of those records. If you come to the conclusion of returning a verdict of murder in the first degree, then you come to the question of considering the other offenses.”
When the Judge so instructed the jury, they had already been considering for five days the prior record of the defendant. Could they strain out the prior record from the evidence on the present case and consider that evidence alone? The human brain is not divided into water-tight compartments which hold ideas and memories incommunicado and sacrosanct from each *427 other. A stone and steel wall can stop a cannon projectile blit nothing can stop a thought. In fact, there is this paradox about mental images. Once the guardian of the mind is instructed that a certain idea must not be considered in connection with another idea, the forbidden concept will dart into every prohibited area. Even Chief Justice von Moschziskeb recognized this, because he said in the Parlcer case “It may be that, if under any circumstances evidence of other offenses than the one on trial is admitted as helpful to the jury in the performance of its duty in assessing the punishment, such proof will inevitably be used by it in determining the guilt of the prisoner.” (p. 154.) He added, however, that “this is not an insurmountable objection.” How did he propose to surmount the objection? He did not say, except to cite a Kentucky case and observe, “if the admission of such evidence is hard on the defendant, it is a burden which he must bear.” Must a defendant be content with cynicism when he asks for justice? Who said that it is a burden which he must bear? The Act of 1925 does not say so. The common law does not say so. Fair play does not say so.
Do Courts engender respect for law when they lay down rules which do not coincide with recognized human phenomena, which bear no relation to the fundamental law of cause and effect, and which assert what the most unlearned man of the streets knows to be contrary to everyday experience? To expect that jurors can place in the deep freezes of their memories a defendant’s prior record, hold it there in unconscious congelation until they have decided the man’s guilt, and then take it out, warm it up and consider it in connection with determination of the penalty, is jurisprudential somnambulism.
In his Dissenting Opinion in the DePofi case, Chief Justice Jones pointed out the absurdity of expecting *428 a jury 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.”
As I have stated at length, the Act of 1925 in no way authorizes the flaunting of a defendant’s prior record in the faces of the jury, but if it is to be brought into the case at all, it should not be revealed, exhibited, or mentioned until after the jury has reached a verdict of guilty of first degree murder. During the oral argument of this case, defense counsel asserted (and justly) that the defendant had been irremediably harmed by the introduction of his prior record before the adjudication of guilt and was, therefore, entitled to a new trial. One of the Justices remarked that to order a new trial for that reason would be inconsistent with the position this Court had taken in the past, mentioning some of the defendants who had been convicted as Thompson has been convicted. I fail to see how that is a supportable reason for denying an established right. Because the Court has erred in the past is no reason why it should continue to err. Piling error upon error does not finally add up to infallibility.
Since the demolition of the Act of 1947 by this Court, the Legislature has enacted no further legislation on the subject, probably throwing up its hands in what’s-the-use helplessness. But there is no need for the Legislature to act if this Court will do what seems to me to be its obvious duty. That duty is to bring the law of criminal procedure in murder trials back to what it was in 1925, before this Court, without removal of judicial robes, assembled to sit as a super-legislature, vetoing the acts of the chosen representatives of the people, and rewriting statutes in accordance with individualistic ideas which cannot be found *429 in Blackstone or in the code of American justice and fair play.
The great legal principle involved here does not apply only to Cleveland Thompson but to all persons who in the future may become defendants in murder prosecutions. Now that this Court has apparently thrown open the floodgates on all trivial as well as serious offenses of an accused’s past, it is possible for an innocent man to be sent to the electric chair not on the evidence of murder but because of the suit of peccadillos which the prosecution forces him to wear. No other State permits so bizarre and tragic a performance. Nothing in history since Justinian, nothing in all the logic of Aristotle, nothing in the mathematics of Euclid, nothing in the science of Newton and Einstein can justify so unAmerican, so unjust, and so unreasonable a procedure.
Without conceding that this is all that can be said on the subject, I dissent.
This statute was re-enacted on .Tune 24, 1939 (Act of June 24, 3939, P. L. 872, §701), with a slight alteration in phraseology which in no way changed the intent and purpose of the original Act.
Commonwealth v. Williams, 307 Pa. 134 .
There has been some discussion as to whether a court-martial record constitutes a court record which can be introduced in a civil criminal trial. I do not go into this discussion at all because, in my view of the case, even if the court-martial does qualify as a proper record, it was improperly introduced for the purpose specified.
Commonwealth v. Cannon, 386 Pa. 62 .
Italics throughout, mine.
Chief Justice MaXey overlooked the fact that there are other laws x^otecting society from habitual offenders.