Commonwealth v. Dilsworth

• Decision Date: 09 May 1927
• Docket Number: 161
• Parties: Commonwealth v. Dilsworth, Appellant
• Court: Pennsylvania Supreme Court

137 A. 683

289 Pa. 498

Commonwealth v. Dilsworth, Appellant

No. 161

Supreme Court of Pennsylvania

May 9, 1927

Argued April 18, 1927

Appeal, No. 161, Jan. T., 1927, by defendant, from judgment of O. & T. Phila. Co., June T., 1925, No. 1115, on verdict of guilty of murder of the first degree, in case of Commonwealth v. Rogers Dilsworth. Affirmed.

Indictment for murder. Before MONAGHAN, J.

The opinion of the Supreme Court states the facts.

Verdict of guilty of murder of the first degree upon which sentence of death was passed. Defendant appealed.

Errors assigned were various rulings and instructions.

The assignments of error are all overruled, the judgment is affirmed, and the record is remitted to the court below for the purpose of execution.

Frank F. Trustcott, with him C. S. Patterson, Jr., for appellant. -- It is reversible error on the part of the trial judge to admit, over the objection of the defendant, an alleged confession without laying the ground for its admission Com. v. Egan, 190 Pa. 10; Com. v. Shew, 190 Pa. 23; Com. v. Epps, 193 Pa. 512; Com. v Aston, 227 Pa. 112; Com. v. Spardute, 278 Pa. 37; Com. v. Bishop, 285 Pa. 49.

If, as was insisted by the prosecution, this statement was admitted only to impeach the credibility of the defendant by showing that he made a statement to officer Waters different from that which he made when he took the stand, the judge erred when he failed to charge the jury that the only effect which could be given to this evidence was to impeach the credibility of the defendant and that it could not be taken into account as direct evidence of the guilt or innocence of the defendant: Meyers v. Com., 83 Pa. 131.

Charles F. Kelley, Assistant District Attorney, with him Charles Edwin Fox, District Attorney, for appellee, cited: Com. v. Johnson, 162 Pa. 63; Com. v. Aston, 227 Pa. 112; Com. v. Spardute, 278 Pa. 37; Gaines v. Com., 50 Pa. 319; Com. v. Weber, 167 Pa. 153; Com. v. Viscosky, 83 Pa.Super. 96; Com. v. Leskoski, 225 Pa. 382; Com. v. Washington, 202 Pa. 148.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. CHIEF JUSTICE MOSCHZISKER:

Rogers Dilsworth was indicted for the murder of John T. Creevy, a policeman; the jury found defendant guilty of murder of the first degree and fixed the penalty at death; he has appealed from a sentence entered in accordance with that verdict.

At the trial, defendant admitted that he was present on the occasion of the homicide and had shot another man, who also was slain at that time, but denied he had killed Creevy.

When defendant closed, the Commonwealth, in rebuttal, called one Waters, a policeman or detective, who had guarded the prisoner in a hospital for two nights following the murder, and proposed to show by this witness that defendant had "told officer Waters a different story from what he had told on the witness stand." The district attorney stated that his offer was "for the purpose of attacking [defendant's] credibility." Counsel for the accused objected that such testimony was not admissible "without laying the ground." The objection was overruled and the testimony admitted; this ruling is complained of in the first assignment of error.

An understanding of the ruling on Waters's evidence requires some preliminary knowledge of the facts in the case. On Sunday afternoon, June 7, 1925, Dilsworth visited the home of Mr. and Mrs. Grubbs. This couple had a young woman living with them to whom defendant was paying attentions. Another man named Ellis, who previously had been devoted to the same young woman, called while Dilsworth was in the house, and when these two men saw each other the former drew a razor and the latter a revolver. Grubbs and his wife, with the help of a third person, managed to take the pistol from defendant, and Ellis departed. Dilsworth demanded his revolver, but Grubbs refused to return it, saying he would give it back when Dilsworth's temper had cooled. On this refusal, defendant remarked, "I know who has got a gun and I will get it." He left, but shortly returned to the Grubbs house accompanied by policeman Creevy. Mrs. Grubbs and her daughter, a girl who was about twelve years of age at the time, both testified positively that the prisoner, while standing closely back and at the side of the policeman, grabbed a revolver from the latter's holster and shot him dead. They said that, immediately after shooting Creevy, the accused turned the pistol on Grubbs, likewise killing him; then, after shooting twice at Mrs. Grubbs, he left the house with the revolver in his hand. He threatened injury to those who pursued him, and surrendered only after being knocked down by a brick thrown at his head.

The testimony of the two persons who witnessed the shooting was corroborated in a measure by at least two others who, though not present at the moment when the fatal shots were actually discharged, nevertheless saw defendant take the pistol from the police officer.

The prisoner said that, while he was endeavoring to persuade Mrs. Grubbs to return his pistol, her husband had appeared with another revolver in his hand and shot the policeman; whereupon he, Dilsworth, had taken the wounded officer's revolver and killed Grubbs, in order, as accused asserted, to defend himself. This testimony was without corroboration, all the other witnesses to the occasion saying that they did not see a pistol in the hands of anyone but defendant. When on the stand in his own defense, Dilsworth testified that, when in the hospital, one of the detectives had asked him, "Why did you kill a cop," and he replied, "I didn't kill a cop."

The notes of testimony show that, immediately before the Commonwealth closed its case, the district attorney said, "I have officer Waters coming down; I was surprised to learn that he had not received notice (side bar conference)." This probably indicates why officer Waters was not a witness in chief. He was called by the Commonwealth in rebuttal, however, and testified, under objection, substantially as follows: That, when he and Dilsworth were together in the hospital, where the latter had been taken for treatment after his arrest, he asked him "Who shot Creevy?" and the reply was, "I shot Creevy." The conversation continued thus: "Q. What did you shoot him for? A. In the house they took the gun off me, and I tried to get my gun, and I told them I was going out to get a gun." Then, Waters stated, the prisoner told him that "he," Dilsworth, "went down the street and brought officer Creevy in," and "when he got officer Creevy in, he [the defendant] grabbed the gun out of the holster and shot Creevy to get Grubbs." The witness stated also that he had said to the accused, "Now, you are aware of the fact that what you may tell me I will use in court against you," and the latter replied, "I know; I am telling you the truth."

As before stated, the specific objection made to this testimony was that it could not be received "without laying the ground." There is nothing on the record to show just what counsel for defendant meant by this expression, but since the testimony objected to was being offered in rebuttal, and to affect the credibility of his client, one would suppose that by "laying the ground" counsel meant it was the duty of the Commonwealth to call defendant's attention, when he was on the stand, to the impeaching testimony it was about to offer, and, not having done this, the prosecution had failed to lay ground for the subsequent introduction of such evidence; therefore it should be refused. But, as the law now stands, the fact that ground was not laid in the manner indicated, does not necessarily bar impeaching testimony when subsequently offered. As said by the Superior Court of Pennsylvania in Com. v. Cowan, 4 Pa.Super. 579, 583, "Formerly, where it was intended to impeach the credit of a witness by proof of verbal statements contrary to his present testimony, the rule was imperative that the witness must first be asked as to the subject matter, time, place and person involved in the supposed contradiction, otherwise no portion of such statements would be admitted; . . . later, this rule has been so far modified as to leave its enforcement to the sound discretion of the trial court, subject to reversal if the discretion is abused." In Cronkrite v. Trexler, 187 Pa. 100, 107, we said, "The right to discredit a witness by proof of contradictory statements without first calling his attention to them in order that he may have an opportunity to explain and reconcile them is a subject on which our decisions have not always been uniform, but it is now settled . . . that the question is one of sound discretion in the judge trying the case, upon the circumstances before him." We there added, "A different rule applies when the witness is a party . . .; then his declarations out of court, as admissions, constitute independent evidence of themselves, and may be proved without first giving him an opportunity to explain." See also Rabinowitz v. Silverman, 223 Pa. 139, 144-5; Caffery v. Phila. & R. Ry. Co., 261 Pa. 251, 256. These authorities show that, even though Waters's testimony contradicted defendant's, it was not necessary to lay ground for its admission, that is, by calling defendant's attention to the contradictions before their introduction in evidence; but, conceding this, counsel for accused contend that, since the testimony under discussion was in the nature of a confession, in order to make it admissible the Commonwealth had to show that, at the time of defendant's declarations, Waters had told him not only that they might be used against him at trial (which warning was given), but also that he need not make a statement unless he desired...