Commonwealth v. Deni

• Decision Date: 07 January 1935
• Docket Number: 273
• Citation: 317 Pa. 289,176 A. 919
• Parties: Commonwealth v. Deni, Appellant
• Court: Pennsylvania Supreme Court

176 A. 919

317 Pa. 289

Commonwealth v. Deni, Appellant

No. 273

Supreme Court of Pennsylvania

January 7, 1935

Argued November 26, 1934

Appeal, No. 273, Jan. T., 1934, by defendant, from judgment and sentence of O. & T. Phila. Co., Feb. T., 1934, No. 715 in case of Commonwealth v. William Deni, alias William Dennie, alias Melyooch. Judgment affirmed and record remitted to court below for purpose of execution.

Indictment for murder. Before McDEVITT, P.J.

The opinion of the Supreme Court states the facts.

Verdict of guilty of first degree murder and penalty of death. Defendant appealed.

Error assigned, inter alia, was refusal of continuance, quoting record.

The judgment is affirmed, and the record is remitted to the court below for the purpose of execution.

Brad Brodsky, for appellant.

Vincent A. Carroll, Assistant District Attorney, with him Charles F Kelley, District Attorney, for appellee.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE KEPHART:

The Braidwood Club, not in any sense a social organization, but a resort for disreputable people, had been under surveillance by the police department of Philadelphia because of the many criminal occurrences that had taken place there, and also because a number of notorious characters known to police visited the place constantly. The proprietor was George Marsh, who prior to the occurrence which gave rise to this trial had shot two men. He had been questioned in three or four murder cases and until recently was a fugitive from justice, his apprehension being required by the United States Government as the result of a holdup of a post office at Conshohocken. The bartender of the club was John Handle. Among those who frequented the club was William Deni, generally known as Melyooch, who had been released from the penitentiary December 27, 1933, after serving a five-year sentence; he admitted he was a gangster and claimed to have been shot a dozen or more times by members of a gang seeking his life.

Acting under the orders of the superintendent of police, through the captain of the district, Harry Donahue and Joseph Ford, policemen, were detailed to keep the place under observation. On Sunday night, about 9:30, February 18, 1934, dressed in plain clothes, they went to the club, parking their car in the street seventy-five feet west of the club. Here they could observe persons entering and leaving the building. They had been there only a few minutes when Deni or Melyooch came out, walked west on Brandywine Street to 20th Street, returned in a few minutes and reentered the club. In this walk he passed the officers' car and both policemen had an opportunity to observe him. Two or three minutes later Deni again came out of the club, and walked west on Brandywine Street, approaching the car; as he did so Officer Donahue, after speaking to his companion Officer Ford, got out of the car, crossed the front of it, and stepped to the curb in a position to speak to Deni as he passed by. Donahue approached Deni with his official badge in his hand (the place being light enough for it to be seen), and said, "We are police officers." Donahue carried no gun, jack, club, or any other weapon in his hand. Immediately and without warning or gesture of any kind, Deni pulled a gun from his pocket and fired three shots at Officer Donahue and then ran west on Brandywine Street. Two of the bullets struck Donahue and caused his death about fourteen hours later. Donahue identified Deni as his assailant before he died, and made a dying declaration to the same effect.

Deni was captured, within three-quarters of an hour after the shooting, in company with Marsh and Handle. He admitted that he shot Donahue and at the bedside of the dying officer he asked the latter "to give him a break." He told the officers where he had thrown his gun after the shooting, and they found it where he had thrown it. Nine days later he was convicted of murder in the first degree, with sentence of death.

Defendant was brought to trial eight days after the homicide, and upon that ground urges that the court below erred in not continuing his case. The same counsel that acted for the defendant at the trial acted during this period. He retired a short time before the day set for trial, but that was merely to be appointed as counsel at the expense of the county. At the magistrate's hearing he was told that the case would be called at the first trial week which would be five or six days thereafter. When, at the opening of the trial, he made his motion for a continuance and it was overruled, he took no exception to the action of the court, but, notwithstanding this, if the interests of justice demanded more time, we would overlook that fact.

In determining whether a continuance should be granted in any criminal case, the nature of the crime and the circumstances attending it must be considered. The occurrences surrounding a crime, its preparation and execution, may be so involved that more time is required to prepare a defense than where such complicating incidents are not involved. In the latter case a speedy trial could and should be had. In all cases such time should be given for preparation that a charge of undue haste can not be fairly made. The circumstances attending the commission of this crime were not in any way intricate or involved; the ninth day after its commission was not, therefore, an...