Commonwealth v. Crowley

• Decision Date: 28 July 1904
• Docket Number: 29-1904
• Citation: 26 Pa.Super. 124
• Parties: Commonwealth v. Crowley, Appellant
• Court: Pennsylvania Superior Court

26 Pa.Super. 124

Commonwealth v. Crowley, Appellant

No. 29-1904

Superior Court of Pennsylvania

July 28, 1904

Argued April 11, 1904 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of O. & T. Clinton Co.-1903, No 1, on verdict of guilty of voluntary manslaughter in case of Commonwealth v. Michael Crowley.

Indictment for murder.

At the trial it appeared that shortly after midnight of June 25, 1903, the defendant shot and killed William J. Ryan under circumstances stated in the opinion of the Superior Court.

The commonwealth made the following offer:

It has been testified here, on the part of the defense, that William J. Ryan was about five feet nine inches tall. We offer in evidence his discharge from the United States Army in 1899, showing his exact height, by measure, to be five feet five and three fourths inches.

Counsel for defendant objects, because it is not authentic; it is not in form to be competent evidence; there is nothing to show its accuracy.

The Court: Objection overruled, evidence admitted and bill sealed for the defendant.

The court charged in part as follows:

The defendant contends that the killing of Ryan was excusable or justifiable, and it therefore becomes my duty to state the law of self-defense as applicable to the facts of the case.

To excuse homicide by the plea of self-defense, it must appear that the killing was done under a reasonable apprehension of loss of life, or great bodily harm, and the danger must appear so imminent at the moment of the assault as to present no alternative but taking the life of the assailant. The law of defense is the law of necessity, and that necessity must be real, or bear all the semblance of reality, and appear to admit of no other alternative, before taking life will be justifiable or excusable. And the burden lies on the prisoner of proving that there was an actual necessity for taking life, or a seeming one, so reasonably apparent and convincing to him as to lead him to believe he could only defend himself by taking the life of the deceased. If the defendant could have fled from his assailant, it was his duty to do so. In Commonwealth v. Drum, 58 Pa. 9, Justice Agnew, when speaking of the law of self-defense, said: " Where it comes to a question whether one man shall flee or another shall live, the law decides that the former shall rather flee than the latter shall die." As was said by the Supreme Court in Commonwealth v. Breyessee, 160 Pa. 451: " Life may be lawfully taken in self-defense, but it must appear that he who takes it was in imminent danger of death, or great bodily harm, and that no other way of escape from the danger was open to him. It is the duty of one who is assailed to flee, if flight is possible; and it is only when he is persuaded that he must suffer death or grievous bodily harm at the hands of his assailant or take the life of his assailant that he may save his own, that he can justify his act as done in self-defense." And it will be for the jury to determine whether there was a necessity for the defendant to fire the shot in order to protect himself from death or great bodily harm, or whether the circumstances justified the prisoner in so believing, and in determining this question you will consider the parties themselves, the prisoner and the deceased, their relative size, physical ability, and all the circumstances surrounding the case, as detailed by the witnesses for the commonwealth and the prisoner himself, and say whether or not you believe it was necessary for him to take the life of Ryan in order to protect his own, or prevent great bodily harm to himself. If he could have got away without that, he was bound to go, and if he fired the shot without such necessity, he would not be justified, under the law, by reason of the excuse of self-defense.

This is the general rule, but it is claimed in the present case that it is qualified by reason of the fact that the defendant was a police officer, and that he was not bound to retreat or attempt to escape, but, on the contrary, it was his right and duty to stand and defend himself. This would be the law if the defendant was legally in the discharge of his official duty. Although he was a police officer, yet if he acted illegally in attempting to arrest Ryan, his act would not be excusable on the ground of self-defense unless the attack made upon him by Ryan was such as made it necessary for him to take the life of Ryan in order to save his own life, or prevent the infliction of great bodily harm.

Was the defendant legally in the discharge of his official duty? Had he a right to arrest Ryan? The defendant was a night watchman or police officer of the borough of Renovo. As such, he had authority to preserve the peace, protect the property of the citizens of the borough of Renovo, quell public disturbances or breaches of the peace committed in his presence.

What are the circumstances, as detailed by the witnesses for the commonwealth and the prisoner himself, which led to the arrest, or attempted arrest of Ryan? Frank McCarthy and William Ryan were seated on the front doorstep of the dwelling house of Mr. Chamberlain on the night of June 25, 1903, about 12 o'clock. The defendant was patrolling the streets of the borough of Renovo, and came to the place where these two young men were seated. They were making no noise or public disturbance. Crowley said to them: " Boys, it is after 12 o'clock and time you boys were in bed." Ryan jumped up, and using opprobrious epithets, said: " What is it your business if we stay here all night." Crowley then said: " It is a part of my business as an officer to see that you are not around at this hour of the night sitting on other people's steps." In this Crowley mistook his official authority. He had no right as a policeman to order McCarthy and Ryan to go home, as they were not creating any public disturbance, nor committing a breach of the peace. They had the right to refuse to go home. Night policemen are not clothed with arbitrary power to tell citizens, who are peaceable and orderly upon the streets, when they shall go to their homes or when they shall come out. What was said by Ryan when Crowley attempted to arrest him would not justify Crowley in arresting Ryan, and he had a right to resist. What Ryan said to Crowley was not a violation of the borough ordinance such as would justify an arrest. Edwin Bower, a disinterested witness of the commonwealth, states that he saw this affray; that Ryan pushed Crowley down, using both hands; that Crowley fell upon his back, and when Crowley attempted to rise to his feet, Ryan pushed him down the second time, Crowley falling upon his back. Crowley, the defendant, is a competent witness, but he is interested, as his liberty is in danger; consequently it is the duty of the jury to carefully scrutinize his testimony and pass upon its credibility. Crowley says that Ryan struck him behind the right ear with one hand and pushed him down with the other; that when he attempted to rise to his feet, Ryan struck him above the right eye and pushed him down the second time; that when he attempted to rise the second time, Ryan struck him in the neck, that he fell, striking his head on the pavement. If the jury should be satisfied that these circumstances, as detailed by the prisoner in regard to the shooting of Ryan, are true, it then becomes their duty to determine whether the shooting was excusable or justifiable. The case must be determined by the jury under the general rule regulating the law of self-defense, which the court has declared to you, and which is correctly stated in the first point presented by the counsel for the defendant, which is as follows: " If the jury believe, from the evidence in the cause, that Michael Crowley, at the time he shot William J. Ryan, had, in good faith, reasonable belief, from the facts and circumstances as they appeared to him at the time, that he was in imminent peril of his life, or of great bodily harm, his killing of Ryan was excusable, although it afterwards appeared that he (Crowley) was mistaken as to the imminence of the danger. The law will not hold a man to absolute correctness of judgment under such trying circumstances, and it was not necessary that Crowley should have been in actual, imminent peril of his life, or of great bodily harm, to render his killing of Ryan excusable. Answer: This point is affirmed.

Verdict of guilty of manslaughter in which the prisoner was sentenced to three years' imprisonment.

Errors assigned were rulings on evidence, quoting the bill of exceptions; portion of charge as above, quoting it.

Reversed.

T. C. Hipple, for appellant. -- The certificate of discharge was improperly admitted: Clark v. Trinity Church, 5 W. & S. 266; Sitler v. Gehr, 105 Pa. 577; Hegler v. Faulkner, 153 U.S. 109 (14 S.Ct. 779); Chapman Twp. v. Herrold, 58 Pa. 106.

The charge of the court complained of in the second assignment must have had, as is believed and respectfully stated, such strong, if not controlling, effect upon the jury as to virtually cause them to conclude the defendant, Crowley, had acted illegally towards Ryan; was a wrongdoer and guilty of a crime of grave character, which could readily be inferred to be voluntary manslaughter.

Crowley did not mistake or exceed his lawful authority as the court charged he did: Miles v. Weston, 60 Ill. 361; Com. v. Cheney, 141 Mass. 102 (6 N.E. 724); Roberts v. State, 14 Mo. 138; Com. v. Weathers, 7 Kulp, 1; Brooks v. Com., 61 Pa. 352; Burns v. Erben, 40 N.Y. 463.

A person cannot use excessive force to prevent an arrest: Com. v. Wright, 158 Mass. 149 (33 N.E. 82); Davis v. Burgess, 54 Mich. 514 (20 N.W. 540); Miller v. State, 31 Tex.Crim. 609 (21 S.W. 925).

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