Com. v. Phelps
| Decision Date | 21 June 1911 |
| Citation | 209 Mass. 396,95 N.E. 868 |
| Parties | COMMONWEALTH v. PHELPS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Richard W. Irwin, Dist. Atty., for the Commonwealth.
W. A Davenport and H. E. Ward, for defendant.
The exceptions in this case were taken during a trial which resulted in the defendant's being convicted of murder in the first degree.
The circumstances were as follows. Previous to June 11, 1910, the defendant had been employed by the Ramage Paper Company at Monroe Bridge. On coming to work on that day, between 5 and 6 o'clock in the afternoon, he found some one else in his place. Thereupon he went into the office of the company and found there one Sibley and one McIntyre. Penman, the superintendent of the Paper Company, soon after came into the office. Penman's story was: That he told the defendant that if he could not do better he had better get out and stay out. That the defendant said that no one could put him out. Whereupon he (Penman) told McIntyre to put him out and McIntyre did so peacefully and without trouble. That he (Penman) followed the defendant as he went out and the defendant, when outside the door, turned and said to him (Penman), 'I will have your heart's blood before morning.' That about 10 minutes after 6 o'clock Penman and McIntyre met the defendant on the highway and he (Penman) told the defendant that he had better 'take a tumble to himself and straighten up,' whereupon the defendant, who up to that time had had his hands in his pockets without saying anything, stabbed him with a knife 'under the left shoulder.' McIntyre's account did not differ in substance, but he added that the knife was open when the defendant took it from his pocket, and 'drawing and striking were practically one movement.' McIntyre also testified that just after the stabbing the defendant said, 'I have got you.'
The doctor who attended Penman testified that he found a clean cut about an inch and a quarter in length and something like 3 to 3 1/2 inches deep, on the left side, about the seventh rib, in the axillary line, 'in the juxtaposition of the heart' and 'about six inches from the left nipple.' There was also evidence that on the afternoon of the day that Penman was stabbed the defendant had said that "he was going down that night, and if Penman didn't set him to work he would fix that son of a bitch,' meaning Penman.'
McIntyre further testified that at about half past 6 or 7 he telephoned to Haskins, the deceased, who was a deputy sheriff at Charlemont, and told him that the defendant 'had knifed Penman, and asked him to come and look after him--take care of him.' Charlemont was some 10 miles distant, and he saw Haskins at Monroe Bridge at about 11 o'clock that same night. McIntyre then testified in these words: 'I told him that Si came into the office, and Mr. Penman had fired him, discharged him, and on going up the hill, we met him again, and that Penman had asked him, putting up his hand, what he meant by this business, and that Si drew a knife and stabbed him (and illustrated by putting his hand in his pocket and the striking).'
The circumstances of the killing told by a number of witnesses produced by the government were in substance as follows: Haskins met McIntyre and four other men in a barn about 11:20, and arranged to go to the defendant's house with those then present and two more, and arrest him at daybreak. One of the four seems to have backed out, and at about half past 3 o'clock in the morning Haskins, McIntyre and five other men started for the defendant's house. They arrived there about 4 o'clock. The sun was due to rise on June 12th at 7 minutes after 4. When they arrived at the house Haskins rapped on the door and said in a loud voice: 'I am Sheriff Haskins, come to arrest Silas Phelps for the knifing of Mr. Penman.' That 'he had better come quietly, and make no trouble; that would be best for all concerned.' No answer being given Haskins rapped again, and again called out, stating who he was and calling upon the defendant to give himself up. There still being no answer Haskins rapped again, and again stated who he was and again called upon the defendant to give himself up. He then called on the defendant's wife to open the door and she said that she would not do so. Haskins asked if she realized that she was hindering an officer in the performance of his duty. To this she gave no answer. Again Haskins rapped and asked the defendant's wife to open the door, and she said that she would not do so. Haskins then asked if the defendant was at home and she said that he was not. After posting two men at the back of the house Haskins, McIntyre and one Tower broke in the front door and went into the kitchen, and as they did so steps were heard ascending the stairs, whereupon Haskins went to the foot of the stairs 'and moved his body forward into the opening of the door of the stairway,' and said, and that he was then shot down by the defendant, who stood at the top of the stairs, and died in a few seconds. Haskins was shot at the top of the breast bone in the center line. The defendant soon after appeared at a window of the house and told the posse to leave or he would begin shooting again. They left. The defendant took to the woods and was captured on the 15th, three days later.
There was also evidence that the defendant had said that Haskins 'swore a false oath against' him a year before, in the 'Shippee case,' and 'that he would shoot him [Haskins] if he ever came to arrest him again.' That Haskins 'I don't know whether he told him, but that is what he told me, and he told others the same thing, too, what he told me. Emmett says, 'May be you and may be me.' He (meaning the defendant) says to Emmett, * * * Emmett says, 'It may be you and may be me,' and he (meaning the defendant) said, 'I know damned well it will be you.” That if Haskins ever came to arrest him again 'he won't take me alive.'
These or similar statements had been repeated by the defendant a number of times. Further, on the night of the day Penman was stabbed the defendant said 'that he was going down that night, and if Penman didn't set him to work he would fix that son of a bitch,' and that on the next morning he telephoned to a cousin, who was a selectman of Monroe Bridge:
There was a conflict in the evidence which it is not necessary to speak of in detail. It is enough to say that the defendant testified that Penman began the quarrel and he stabbed him in self-defense; that on the morning of June 12th he did not recognize Haskins' voice, and the shotgun that killed him was discharged by accident.
The commonwealth put its case on three grounds, namely: (1) That in stabbing Penman the defendant committed a felony and therefore Haskins had a right to arrest the defendant without a warrant; (2) that on facts communicated to him by McIntyre, Haskins had reasonable ground to believe and did suspect that a felony had been committed; and (3) that the defendant shot Haskins with express malice out of hatred and for revenge. Whether a felony had or had not been committed in this case depended upon whether the defendant stabbed Penman with intent to commit murder, for that is punishable by imprisonment in the state prison (R. L. c. 207, § 15) and so is a felony (R. L. c. 215, § 1).
At the conclusion of the evidence the defendant's counsel asked the presiding judge to rule that there was no evidence that a felony had been committed. This was refused. Thereupon the case was argued and the jury were instructed on that footing. After a conference with counsel on the conclusion of the charge the presiding judge, 'the district attorney consenting,' charged the jury 'that there was no evidence that Phelps made an assault upon Penman with intent to kill.' The judge went on and instructed the jury that the commonwealth's case in regard to Haskins' proceeding without a warrant 'now rests' solely upon the testimony in regard to Haskins' suspicion that a felony had been committed, and told them: 'You may disregard all the evidence relative to the assault by the defendant upon Penman, except so far as it appears in evidence that facts is relation thereto were communicated to Haskins.'
Before taking up the several exceptions taken by the defendant we will deal with a question which is a fundamental one in this case, namely, the right of an officer to arrest on suspicion of felony. It was laid down by Chief Justice Shaw in Commonwealth v. Carey, 12 Cush. 246, 247, that 'if he [a constable or other peace officer] arrest a person without a warrant, he is not bound to show in his justification a felony actually committed, to render the arrest lawful; but if he suspects one on his own knowledge of facts, or on facts communicated to him by others, and thereupon he has reasonable ground to believe that the accused has been guilty of felony, the arrest is lawful.' If it was intended by this statement in Commonwealth v Carey, to make a distinction between the...
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