Commonwealth v. Brown

• Decision Date: 10 March 1919
• Docket Number: 5
• Citation: 107 A. 676,264 Pa. 85
• Parties: Commonwealth v. Brown, Appellant
• Court: Pennsylvania Supreme Court

107 A. 676

Commonwealth v. Brown, Appellant

264 Pa. 85

No. 5

Supreme Court of Pennsylvania

March 10, 1919

Argued January 7, 1919

Appeal, No. 5, Oct. T., 1919, by defendant, from judgment of O. & T. Allegheny Co., Sept. T., 1913, No. 33, on verdicts of murder of the first degree and murder of the second degree in case of Commonwealth v. Robert Henry Brown. Affirmed.

Indictment for murder of Wm. J. Elford and Chas. L. Edinger. Before SWEARINGEN, J.

Verdict of guilty of murder of the first degree as to Wm. J. Elford and of murder of the second degree as to Charles L. Edinger. Defendant appealed.

Errors assigned were various rulings on evidence and instructions set forth in the opinion of the Supreme Court.

The judgment is affirmed and the record remitted for purpose of execution.

W. St Clair Childs, with him Drayton Heard, for appellant. -- The provisions of the Act of March 15, 1911, P.L. 20, were violated, for the defendant had not put his character in issue, and there was no basis for asking if he was a deserter from the United States army: Com. v. Garanchoskie, 251 Pa. 247; Com. v. Rosmovicz, 21 Pa. Dist. Rep 1027; Com. v. Melinkoff, 61 Pa.Super. 238; Canole v. Allen, 222 Pa. 156; Hopt v. Utah, 110 U.S. 574; Thompson v. Utah, 170 U.S. 343.

Failure to charge there was no burglarly under the statute defining degrees of murder, was error: Hollister v. Com., 60 Pa. 103; Roland v. Com., 82 Pa. 306; Roland v. Com., 85 Pa. 66.

The hearsay testimony should have been rejected: Com. v. Dorwart, 19 Pa. Dist. Rep. 740.

Harry A. Estep, Assistant District Attorney, with him Harry H. Rowand, District Attorney, for appellee.

Before BROWN, C.J., STEWART, MOSCHZISKER, FRAZER, WALLING, SIMPSON and KEPHART, JJ.

OPINION

MR. JUSTICE FRAZER:

On the night of June 5, 1917, defendant entered the vestibule of the liquor store of William L. Elford, in the City of Pittsburgh. He was discovered by William J. Elford, son of the owner, who notified the police, and while he and two policemen, including one Edinger, were attempting to force their way into the entry two shots were fired from the inside, one of which, according to the theory of the Commonwealth, struck officer Edinger and the other young Elford, both of whom died later from their injuries. Defendant escaped from the doorway and in passing out by the rear was discovered and wounded by a bullet from the revolver of an officer who had been directed to guard that part of the premises. Defendant was indicted and convicted in the court below on two separate indictments which were tried together, one for the murder of William J. Elford, and the other for the murder of officer Edinger; the verdict in the Elford case being first degree murder and in the other second degree murder. The facts connected with the crime were fully submitted to the jury in a careful charge; reference to the evidence in detail is unnecessary except in so far as it may have a bearing on certain questions raised in the assignments of error.

The first and second assignments are to the refusal of a new trial and to the entry of judgment on the verdict, these questions will be considered under the other assignments.

The third and fourth assignments complain of the refusal of the court to affirm points to the effect that there being no evidence tending to show the store entered by defendant was part of a dwelling house, defendant could not be convicted of murder committed in the course of burglary within the meaning of the statute defining the degrees of homicide. The trial judge refused these points as being "immaterial under the general charge." At the outset of the charge the jury were instructed they were not concerned with the fact that defendant entered the building and was there for an unlawful purpose, nor did the Commonwealth base its prosecution upon the theory that the homicide was committed while defendant was attempting to commit burglary. In discussing the degree of murder the court read to the jury the portion of the statute defining murder of the first and second degree and stated further, that, "in this case you have only to deal with the murder committed by 'any other kind of wilful, deliberate and premeditated killing'; as, for example, it is not contended that this killing occurred by means of poison, or by means of lying in wait, so that the portion of the statute which you have to apply to the evidence here is what we have indicated to you, namely, murder committed by any kind of wilful, deliberate and premeditated killing." After this instruction the court further charged as to the elements necessary to constitute wilful, deliberate and premeditated murder within the meaning of the law. This instruction was followed by the affirmance of defendant's fifth point to the effect that there could be no finding of murder of the first degree, unless the jury was convinced the killing was wilful, deliberate and premeditated, and, finally, at the close of the charge, in answer to an oral request that the jury be further instructed that the case did not come within the provisions of the statute relating to murder committed in the course of rape, robbery, arson or burglary, the court stated: "We do not think it necessary to repeat what we have said, namely, that the jury only has to deal with one kind of murder of the first degree and do not see any necessity for repeating what we have already said."

All questions of murder committed during the perpetration of burglary were eliminated; consequently, the court was not in error in stating the points were immaterial under the general charge. The trial judge in using the illustration referred to clearly showed it was not contended the killing occurred by means of poison or lying in wait and did not intend to convey the impression that an inference might be drawn that the killing occurred during an attempt to commit burglary, nor could the jury have received such impression, as there was no attempt to refer to the latter clause of the statute relating not only to burglarly but also to arson, rape and robbery. While the trial judge might have affirmed the point, his failure to do so, in view of the circumstances above referred to, did no harm and is not reversible error: Creachen v. Bromley Bros. Carpet Co., 214 Pa. 15; Miller v. James Smith Woolen Machinery Co., 220 Pa. 181; Hufnagle v. Delaware & Hudson Co., 227 Pa. 476. See also Commonwealth v. McManus, 143 Pa. 64, 84, 85.

The fifth and sixth assignments of error are to the refusal of the court to withdraw a juror and continue the case because the district attorney asked defendant, on cross-examination whether he was a deserter from the United States army. Defendant answered in the affirmative. No objection was raised at the time. Subsequently his desertion from the army was again referred to by defendant under examination by his counsel, and the fact brought out that a third person, who had knowledge of the matter, had been blackmailing defendant, and on the evening of the crime demanded ten dollars on threat of exposure if the demand was not complied with; the purpose of this being to disprove malice in committing the crime charged. On being asked by his counsel why he deserted the army, an objection that his action in so doing was immaterial was sustained by the court, and a motion to withdraw a juror,...