Commonwealth v. Doris

• Citation: 135 A. 313,287 Pa. 547
• Decision Date: 06 December 1926
• Docket Number: 308
• Parties: Commonwealth v. Doris, Appellant
• Court: United States State Supreme Court of Pennsylvania

135 A. 313

287 Pa. 547

Commonwealth v. Doris, Appellant

No. 308

Supreme Court of Pennsylvania

December 6, 1926

Argued November 22, 1926

Appeal, No. 308, Jan. T., 1926, by defendant, from judgment of O. & T. Phila. Co., May T., 1926, No. 258, on verdict of guilty of murder of first degree, in case of Commonwealth v Frank Doris, alias Frank Fox, alias Frank Davis. Affirmed.

Indictment for murder. Before DAVIS, J.

The opinion of the Supreme Court states the facts.

Verdict of guilty of murder of first degree with death penalty, on which sentence of death was passed. Defendant appealed.

Errors assigned were various rulings and instructions, quoting record.

The judgment is affirmed, and it is directed that the record be remitted for the purpose of execution.

Henry Stevenson and C. Stuart Patterson, Jr., with them Louis T McCabe, for appellant. -- Where a robbery has been committed, but the plunder has been abandoned, the attempt discontinued, and the robbers are in flight, and one of them is arrested and thereafter separated from the entire transaction, evidence of what occurred during the continued flight of his accomplices in the robbery, and out of his presence, after his arrest, are not admissible against him on a charge of murder.

The court erred in its charge on the question of reasonable doubt.

Charles Edwin Fox, District Attorney, with him Charles I. Thompson, Assistant District Attorney, for appellee. -- The escape is part of the res gestae of a felony: Conrad v. State, 75 Ohio St. 25; State v. Brown, 7 Ore. 186; Territory v. McGinnis, 10 N.M. 269; Com. v. Brown, 90 Va. 671; McMahon v. People, 189 Ill. 222; Francis v. State, 104 Neb. 5; Bissott v. State, 53 Ind. 408; Hedrick v. State, 40 Tex. Cr. 532; Holmes v. State, 6 Col. Cr. 541; State v. Williams, 28 Nev. 395; Com. v. Lessner, 274 Pa. 108.

The joint stand to resist arrest to the death renders the appellant liable for the ensuing homicide.

Appellant's arrest does not relieve him from the responsibility for the subsequent homicide: People v. Nichols, 230 N.Y. 221.

The court's charge, on the subject of reasonable doubt, was adequate and proper.

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

OPINION

MR. JUSTICE SADLER:

The defendant was indicted with three others for murder, and, after a separate trial, convicted in the first degree. A history of the crime, and a statement of the part played therein by Doris, will be found in the opinion this day filed in Com. v. Bentley. A motion for a new trial was refused and sentence of death imposed. This appeal brings before us for consideration certain alleged trial errors.

It is insisted on behalf of Doris, and his codefendants Bentley and Juliana, that verdicts of first degree murder cannot be sustained, since the killing of officer Cooper was the result of a shot fired by Curry, the fourth of the bandits engaged in the holdup. The jury has found, under proper instructions, that all were parties to an agreement "to rob or to carry out the conspiracy to rob, and that officer Cooper was killed as the result of the carrying out of that unlawful purpose." This was the fact which the jury was advised in the charge of the court in the Doris Case -- and like language appears in the Bentley and Juliana instructions -- must be found beyond a reasonable doubt before a verdict such as was rendered could be justified.

The proof of the common purpose to take by force the money of the bank, carry it away, and make a safe escape, may be inferred from the attending circumstances. Whether such a criminal intent existed was a question for the jury, and the evidence warranted their conclusion. The defendants started upon their enterprise armed with guns and revolvers. They had provided an automobile in which to flee, and had there stored an extra supply of ammunition. From the moment of leaving their car they kept up a continuous volley of bullets, until their return to the auto, which they were unable to move. They ran away together, continuing the fire. After going a short distance, Doris was taken, still armed, and the remaining three continued in the milk wagon using their deadly weapons until the shooting of the pursuing police officer. All had loaded revolvers when taken, except Bentley, but he had made use of his until after the killing of Cooper.

There can be no question of the legal responsibility of the accomplice for the act committed by his coconspirators while the crime agreed upon is in the course of perpetration, for he is criminally liable for the natural consequences of the acts of his fellows under such circumstances. Where the parties by their conduct show the intention to use such force as is necessary to accomplish their purpose, and, in furtherance of the common design another is killed, each is guilty of the crime: Com. v. Biddle, 200 Pa. 640; Com. v. Micuso, 273 Pa. 474; Com. v. Robb, 284 Pa. 99; Weston v. Com., 111 Pa. 251.

It is urged that the escape and flight are not to be considered as part of the perpetration of the robbery, which, it is claimed, had been completed when the stolen money was deposited in defendants' car, and thereafter no responsibility attached to any individual for the act of the other. Authorities are to be found in New York which support the suggested distinction. Even in that state it is held in People v. Marwig, 227 N.Y. 382, relied upon by appellants here, and Ruloff v. People, 45 N.Y. 213, that defendant is not exempt where the facts show a conspiracy not only to rob, but also to carry away the plunder and escape, a situation which the jury has determined was present in this case.

The Pennsylvania rule finds expression in Com. v. Lawrence, 282 Pa. 128, 132, where the court says, in part: "Though the forcible stealing technically may be complete, if the homicide is committed while the actor is engaged in one of the elements incident to the crime, as, for illustration, an escape or flight, the killing is referable to the robbery." Whether the act of departing is a continuous part of the attempted or accomplished crime is for the jury: Com. v. Major, 198 Pa. 290. See also, Brooks v. Com., 61 Pa. 352; Com. v. Lessner, 274 Pa. 108. There was no break here in the continuity of events from the original attack to the shooting of Cooper (Com. v. Morrison, 266 Pa. 223), and the purpose to secure a safe retreat at any cost is made evident by their providing an auto, so that flight could be effected, and by the constant firing of each and all, until separately disarmed.

This measure of liability, where the crime is a part of one...