Commonwealth v. Dilsworth

• Decision Date: 09 May 1927
• Parties: COMMONWEALTH v. DILSWORTH.
• Court: Pennsylvania Supreme Court

137 A. 683
289 Pa. 498

COMMONWEALTH
v.
DILSWORTH.

Supreme Court of Pennsylvania.

May 9, 1927.

Appeal from Court of Oyer and Terminer, Philadelphia County; John Monaghan, Judge.

Rogers Dilsworth was convicted of murder, and he appeals. Affirmed.

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

C. Stuart Patterson, Jr., and Frank F. Truscott, both of Philadelphia, for appellant.

Charles Edwin Fox, District Attorney, and Charles F. Kelley, Asst. District Attorney, both of Philadelphia, Attys. for the Commonwealth.

MOSCHZISKER, C. J. 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' 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 12 years of age at the time, both testified positively that the prisoner, while standing closely back and at the side of the

137 A. 684

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 only surrendered 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 fata! 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 any one 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...