Commonwealth v. Clark

Decision Date06 January 1890
Docket Number194
Citation130 Pa. 641,18 A. 988
PartiesCOMMONWEALTH v. BENJAMIN CLARK
CourtPennsylvania Supreme Court

Argued October 28, 1889

APPEAL BY DEFENDANT FROM THE COURT OF OYER AND TERMINER OF GREENE COUNTY.

No. 194 October Term 1889, Sup. Ct.; court below, No. 2 June Term 1888, O. and T.

On January 6, 1888, the grand jury returned as a true bill an indictment charging George Clark, Frank Clark, Sr., and Zach. Taylor, with the murder of Wm. McCausland on September 10 1887.

On April 3, 1888, a severance was had and the trial of George Clark was ordered, resulting in a verdict of guilty, on April 14, 1888. The judgment on the verdict was affirmed on writ of error to this court, on February 11, 1889. See Commonwealth v. Clark, 123 Pa. 555, where the material facts relating to the murder sufficiently appear. On January 15, 1889, the indictment of Zach. Taylor was called for trial, resulting in a verdict of guilty, and on May 1 1889, judgment was passed, which on October 28, 1889, on appeal to this court was affirmed. See Commonwealth v Taylor, 129 Pa. 534.

On June 5, 1888, after the trial and conviction of George Clark, an information was made by the widow of the murdered man charging "that she had cause to suspect and did suspect that Benjamin Clark did kill and murder William McCausland, and did assist in the killing and murdering of said William McCausland." Upon this information the defendant, who was a son of Frank Clark, Sr., was arrested, committed, and on June 20, 1888, an indictment charging him as a principal in the murder was found a true bill by the grand jury. Issue.

The cause was called for trial on April 4, 1889, and a jury impaneled. After the admission in evidence of other facts tending circumstantially, as it was claimed, to connect the defendant with the actual commission of the crime, George Calvert was called and sworn for the commonwealth:

The commonwealth: We propose to prove by this witness that about three weeks after the murder he was out hunting in the woods called "Cloud's Woods," and came across the defendant and a man named Newton Hunter, at or near an old coal mine; that he heard the defendant say to Hunter, "It will take all pap's got to clear him;" and in the same conversation he heard the word "McCausland" used. This for the purpose of showing guilty knowledge on the part of defendant.

Defendant objects to the testimony as incompetent and irrelevant.

By the court: Objection overruled; exception sealed.

The assignment of error did not show what the witness testified to under this offer; nor was any of the testimony taken in the case printed in the paper-books, except that relating to the following offer, which appeared in the paper-book of the commonwealth:

The commonwealth produced a statement in writing sworn to by the defendant on June 20, 1888, before W. T. Webb, a justice of the peace, and claimed to be inculpatory in its character. Upon a preliminary examination as to the circumstances under which it had been made, it was shown, in substance, that the magistrate had been called to see the defendant in the presence and custody of the sheriff, and in the presence of Mr. Huss, the district attorney, and other persons; that Mr. Huss told the defendant in the presence of the magistrate that "he could not hold out any inducement to him to make a statement, -- that it might be used against him on his trial;" that the defendant said he was making it of his own free will; that the defendant was sworn, and his statement taken down as he made it, and read over several times, sentence by sentence, and corrected, when he signed it. The statement was then offered in evidence by the commonwealth, "for the purpose not only of showing guilty knowledge on the part of this defendant, but that he was a participant in the murder of William McCausland."

Defendant objects that the statement offered in evidence is irrelevant in itself; and further, it is incompetent for the following reasons: (1) That the statement having been made before the committing magistrate, under oath administered by him before any statement was made by the prisoner, is duress such as constitutes an unlawful condition precedent to such a statement, and was a gross violation of the prisoner's rights under the law. (2) That it was made in the presence of persons in authority; the district attorney of the county, the committing magistrate and the sheriff; and under circumstances which were calculated to induce the defendant to make untrue statements.

By the court: We are of the opinion from the testimony submitted to the court that at the time the statement was made there was an entire absence of anything like an inducement or threat made to the defendant, but on the other hand, he was warned by the district attorney, who was present, that he could not hold out any promise of favor, and the statement or any statement he might make might be used against him afterwards. This being the case, we think it would be clearly competent on that ground. As to the objection that the oath was administered by the justice before the statement was made, we do not regard that so important as the counsel for the defendant or the commonwealth seem to think. While entirely unnecessary, and we are at a loss to know why the justice thought it was necessary in a voluntary statement to administer an oath, -- why he administered the oath, we are at a loss to know; but it seems he did administer an oath before the statement was taken; but in the absence of any offer of favor or threat by any one, we do not think the fact that the oath was administered renders the statement incompetent. As to the fact that the statement was made in the presence of the committing magistrate, and other persons in authority, this standing alone we do not think would be sufficient to render the statement incompetent; but when coupled with the fact that the testimony of the witnesses showed he was cautioned, we think the statement made in their presence would be competent. As to the relevancy of the statement, taking it in connection with the other testimony in the case, we are of the opinion it should be admitted, and it is competent, so far as it may show any knowledge or connection on the part of the defendant with the crime of which he is charged. The objections urged on the part of the defendant are overruled and the testimony admitted; exception.

The statement thus admitted in evidence was as follows:

The Voluntary Confession made by Benjamin Clark on this day, June 19 and 20, 1888, before me, on oath:

"On Friday night before the murder, Zach. Taylor was up to James Neff's to know when the man would be back, that is, Wm McCausland, and on the same night he went to Frank Clark, Jr.'s, and stayed there all night. He started away and said he was going on the other side of the river. Zach. Taylor and George Clark had this revolver. George Clark got this revolver of Joe Martin some time before the murder. I seen George Clark have this revolver several times. Do not know who put the marks on the revolver. I saw Zach. Taylor have this revolver the night before the murder of William McCausland. When he went up to James Neff's on Friday night he had a jug of liquor with him. I saw George Clark and Zach. Taylor on Saturday morning of the day of the murder. They went down and crossed the creek and went up the hollow a little after 8 o'clock A.M. George Clark had a shot-gun; Zach. Taylor had the revolver. That's the night before I saw Zach. Taylor have the revolver and Big George Clark have the shot-gun the morning of the murder, and I saw them going from Frank Clark's and went up the hollow towards where the murder was committed. George Clark told me that Zach. Taylor fired the shot that killed William McCausland. On the same Saturday evening of the murder, I was over at George Clark's, when he told me that they both got some money from William McCausland. We were at the back part of the house when he told me. George told me that they got some bank notes and silver money, but did not tell me the amount. George told me at the same time and at the same place that James Neff got three or four hundred dollars. George Clark came over the river with us the same Saturday night, and we met Jim Neff at our house, and I saw George Clark give Jim Neff some money; I do not know what amount; and I heard James Neff say to George Clark that he wished that we could run across another drover like that; then George Clark went in the house and stayed all night, and Neff went towards home. George stayed all day Sunday and Monday till in the evening; then he started and said he was going home. George Clark told me that the reason that they left the revolver on the ground was, that they seen a man coming down the road, and they were afraid he would ketch them. The man was Areford. That, George Clark told me. George Clark told me that he throwed the man over the stone wall, and took the pocket-books out of McCausland's pockets, and after they got the money they went down back of Cloud's barn; and he told me that they went down along the line fence, that is, George and Zach.; that is what he told me. Then they went on down to Gray's line fence, then they went down the creek; that is what George told me the same Saturday night he stayed at our house. George Clark told me that when they came over to Greene county the night before the murder, that they stole Ben. Provins' boat and crossed in it, and after they crossed they turned it adrift. Big George Clark told me that he was over in Greene county the Wednesday before the murder, and was up in the McCann's Ferry road when James Fordyce went past, and he said he had a revolver with him at the time. George Clark and Zach. Taylor both told me that they had...

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