Commonwealth v. Eisenhower

• Decision Date: 27 May 1897
• Docket Number: 84
• Citation: 37 A. 521,181 Pa. 470
• Parties: Commonwealth of Pennsylvania v. Theodore Eisenhower, Appellant
• Court: Pennsylvania Supreme Court

37 A. 521

181 Pa. 470

Commonwealth of Pennsylvania v. Theodore Eisenhower, Appellant

No. 84

Supreme Court of Pennsylvania

May 27, 1897

Argued March 8, 1897

Appeal, No. 84, Jan. T., 1897, by defendant, from judgment of O. and T. Schuylkill Co., March T., 1896, No. 378, on verdict of guilty of murder in the first degree. Affirmed.

Indictment for murder. Before SAVIDGE, P.J., of the 8th judicial district, specially presiding.

At the trial it appeared that on February 17, 1896, John H. Schwindt and Patrick Monaghan left the colliery at which they had been working to go to their homes.

As they approached the borough of Shenandoah, they were walking leisurely between the tracks of the Lehigh Valley railroad Schwindt being on the right hand side of Monaghan. When they arrived close to the corner of Main and Laurel streets Theodore Eisenhower, the defendant, was seen ten or twelve feet in the rear of Schwindt and Monaghan, walking quickly toward them, and when within the distance of one or two steps of them was seen to put his hand in his right hand pocket draw forth a revolver, and fire a shot into the back of Schwindt, who immediately fell to the ground with the exclamation, "I am shot."

Eisenhower stood for a minute or so over the body of Schwindt, then turned and ran south on the railroad track for a short distance, then east around a pile of rocks located near the railroad track, towards Main street, where he was overtaken by H. W. Smith and others, and the pistol with which he had done the shooting was taken from him.

After the shooting, upon an examination by the physicians, it was found that the deceased was suffering from a gunshot wound in the back near the tenth dorsal vertebra, and that his lower extremities were completely paralyzed, both as to motion and sensation.

Dr. J. C. Biddle was immediately sent for, and on the following morning, February 18, about the hour of nine o'clock, arrived at the house of the deceased, and, after making an examination, concluded that the cause of the paralysis was due either to a pressure upon the spinal column or an injury to the cord, and at once informed the family or the physicians in attendance that the only chance the deceased had for his life was to remove the obstruction if it could be, or remove the cause if possible. On the same day an operation was performed by Dr. Biddle, and it was found that the bullet in its passage had severed the spinal cord about half, which wound, of itself, according to the testimony of Dr. Biddle, was necessarily fatal. He testified that the cause of death was inflammation of the membranes of the spinal cord caused by the bullet. Schwindt died on the evening of the 26th of February, about the hour of nine o'clock.

It appeared at the trial that no difficulty had ever occurred between the deceased and the defendant, but that a difficulty had occurred one night during the month of August, 1895, between William Schwindt, twin brother of the deceased, and the defendant; that during a scuffle that occurred it appears that Eisenhower's ribs had been injured and that he subsequently prosecuted William Schwindt for inflicting the injuries; that from the time of this difficulty up to within a short time prior to the killing of John Schwindt, the defendant had made threats to take the life of William Schwindt.

It will further appear from the testimony of the defendant himself that in the latter part of January, a few weeks prior to the killing of Schwindt, defendant purchased a revolver in a hardware store in Pottsville; that he carried that revolver with him constantly loaded from that time up to the time of the killing; that on the morning of February 17, he left the house of his sister, who resided in Ringtown, with his revolver in his overcoat pocket; that he came to Shenandoah, sometime during the morning of the 17th; that he visited Wagner's and Costeller's saloons and had drinks therein; that he recollects that he changed a five dollar bill in Wagner's for drink, taking a whisky, recollects the change he received, bills and silver; that he remembers walking down within sight of the Turkey Run colliery where he knew that both the Schwindt boys were employed, he himself having been employed at said colliery sometime prior thereto as a teamster; recollects all his actions and whereabouts up to the time of the killing.

In appellant's history of the case it is stated that appellant was locked out of his house one night by his wife, and afterwards William Schwindt and he went to the house together and the door was opened by the wife, and they were both admitted into the room, where they sat talking and laughing together until the defendant fell asleep on the floor, leaving William Schwindt and the defendant's wife alone in the room, that Eisenhower awoke and found the light in the room turned down and his wife sitting in Schwindt's lap; that defendant immediately jumped up and he and Schwindt got into a tussle in which Schwindt fractured one of the defendant's ribs, and then ran from the house as did also the wife and children, remaining away from the house all that night and part of the next day; that from that time on defendant and his wife had frequent quarrels and separations, she teasing and twitting him about other men. She had him arrested several times for assault and battery which cases were always settled before going to court, and she finally succeeded in driving him away from the house; that defendant is an ignorant man; that he was employed as a teamster around the mines; that on the afternoon of February 17th, or thereabouts, he was going down the main street of Shenandoah when he met his little boy with whom he had a long conversation in a bakery store where he had taken him to buy candy; that he inquired about his family and asked the boy if he did not want him to come home, to which the boy replied that he did, but his mother had forbidden him to talk to his father; that he bade his little son goodbye with tears in his eyes; that his mind at this time was wandering, and while in this condition he met and shot John Schwindt, who, in falling, said, "He has shot the wrong man;" that defendant stood staring at deceased for several minutes, then turned and walked up an embankment at the side of the road and down to and upon the main street, where he surrendered himself to the officers.

Other facts appear by the opinion of the Supreme Court. The jury found the defendant guilty of murder of the first degree, upon which he was sentenced by the court.

Errors assigned were as follows:

1. In overruling defendant's motion to call the last juror stood aside first.

2. In allowing the commonwealth to cross-examine the defendant's witnesses before permitting them to state whether or not the prisoner was of unsound mind at the time of the shooting, and in not permitting defendant's counsel to cross-examine the commonwealth's witnesses before permitting them to give an opinion as to the sanity or insanity of the prisoner.

3. In not compelling the commonwealth to call Mrs. Arthurson, a witness subpoenaed by the commonwealth, who saw the prisoner on the day of the shooting.

4. In allowing the commonwealth to call Theodore Eisenhower in rebuttal for the purposes of contradiction and to test memory.

5. In not sustaining defendant's motion to withdraw a juror when commonwealth's counsel made the statement that we that is defendant, had a right to call Mrs. Eisenhower, the prisoner's wife, and that the court sai...