Commonwealth v. Thomas

• Decision Date: 24 June 1922
• Docket Number: 82
• Citation: 275 Pa. 137,118 A. 667
• Parties: Commonwealth v. Thomas, Appellant
• Court: Pennsylvania Supreme Court

118 A. 667

275 Pa. 137

Commonwealth v. Thomas, Appellant

No. 82

Supreme Court of Pennsylvania

June 24, 1922

Argued May 24, 1922

Appeal, No. 82, Oct. T., 1922, by defendant, from judgment of O. & T. Allegheny Co., Feb. T., 1921, No. 176, on verdict of guilty of murder of the first degree, in case of Commonwealth v. Joseph Thomas. Affirmed.

Indictment for murder. Before STONE, J.

The opinion of the Supreme Court states the facts.

Verdict of guilty of murder of the first degree on which sentence was passed.

Errors assigned, inter alia, were ruling and instructions, appearing by the opinion of the Supreme Court, quoting them.

The judgment of the court below is affirmed, and it is ordered that the record be remitted for the purpose of execution.

George H. White, Jr., for appellant.

Harry H. Rowand, for appellee.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SADLER:

Anna M Kirker resided with her husband and daughter in a house, somewhat removed from other dwellings, in Allegheny County. On December 16, 1920, she was alone and last seen alive about 10:30 in the morning, and at four in the afternoon her dead body was discovered in the living room by the returning daughter. Death had resulted from a gunshot wound, and investigation showed a number of articles had been removed from the home, including a gold watch, a manicure set and an overcoat of Mr. Kirker. Footprints in the snow showed the route followed by someone who had left the dwelling, and these were tracked by a roundabout course to a public highway. On this path were found, concealed at different points, an overcoat torn into two parts, -- subsequently identified as having been worn on that day by defendant, -- and also the manicure set which had been taken.

Later, Thomas was arrested on another charge, and the inquiry which followed disclosed facts connecting him with the Kirker murder. In his room were found copies of newspapers describing the occurrence, and, in his trunk, the watch of deceased, and the overcoat of her husband. He was arrested for the crime, but escaped, and was not apprehended until the following July in Baltimore. At his trial, the Commonwealth proved the facts above narrated, as well as other important circumstances indicating guilt. His presence near the Kirker house during the period when the murder was committed was testified to by several witnesses, who were positive in their identification. At that time, he was wearing the gray overcoat subsequently found concealed in the underbrush, as stated above. The defendant did not testify, and no evidence was offered on his behalf. The jury returned a verdict of guilty of murder of the first degree, and from the sentence subsequently imposed this appeal is taken.

But one complaint as to the admission of evidence appears, -- assignment nine, -- and this is based on the permission given to the Commonwealth to prove that the husband of the deceased was not at home on the day of the murder. This objection is so clearly unfounded, that no discussion is required. The remaining errors are directed to the charge of the court, to which a general exception was taken. Number one complains of it as a whole, and the particular parts thereof alleged to have been prejudicial are separately assigned. The third, fourth, fifth and eighth aver error in the statement of facts, either on the ground of inaccuracy or insufficiency. At the conclusion of the instructions, no request for corrections or amplification was made by defendant, though in a proper spirit of fairness this opportunity was given by the court. It is too late now to complain for such reasons: Com. v. Washington, 202 Pa. 148; Com. v. Webb, 252 Pa. 187; Com. v. Russogulo, 263 Pa. 93; Com. v. Varano, 258 Pa. 442.

It is insisted in assignment two that the defendant was harmed by the instructions as to the effect to be given circumstantial evidence. Comparison shows the language used is practically that of Chief Justice GIBSON in charging the jury in Com. v. Harman, 4 Pa. 269, 272. The thoughts there expressed have found approval in later cases (Com. v. DuBoise, 269 Pa. 169; Com. v. Kovovic, 209 Pa. 465), and no reason has been pointed out which would lead us to reach a different conclusion.

The court in discussing the effect of the flight of defendant said: "When a crime has been committed, and the person accused thereof knows he is accused, and then flees or conceals himself, such conduct is evidence of consciousness of guilt, and in connection with other proof may be the basis from which guilt may be inferred." The same words have previously been used in trials for homicide, and held to correctly state the law: Com. v. Boschino, 176 Pa. 103. There is no merit in the sixth assignment.

Again it is argued legal error was committed by the reference made to the failure of defendant to testify. For a clear understanding, we quote from the charge: "The defendant was returned from Baltimore to the City of Pittsburgh on July 22d last, and has been here from that time to the present. The defendant has not seen fit to produce any evidence in answer to the charge of the Commonwealth, and in answer to the evidence produced by the Commonwealth. It is the law, and I so charge you, that the fact that the defendant does not go on the stand, or does not produce any evidence in his own behalf, is not to be taken and considered as any evidence of guilt, or to be taken and considered as anything against him whatsoever. For it sometimes and often does occur that defendants and their counsel are not convinced that the Commonwealth has produced sufficient evidence which, even if believed, would be sufficient to warrant a...