Commonwealth v. Flood
| Decision Date | 24 November 1930 |
| Docket Number | 313 |
| Citation | 153 A. 152,302 Pa. 190 |
| Parties | Commonwealth v. Flood, Appellant |
| Court | Pennsylvania Supreme Court |
Argued October 8, 1930
Appeal, No. 313, Jan. T., 1930, by defendant, from judgment of O. & T. Luzerne Co., Feb. T., 1930, No. 303, on verdict of guilty of murder of the first degree, in case of Commonwealth v. Wilfred Flood, alias Fred Wilkins, alias Fred Lipski. Affirmed.
Indictment for murder. Before VALENTINE, J.
The opinion of the Supreme Court states the facts.
Verdict of guilty of murder of the first degree with penalty of death, on which judgment of sentence was passed. Defendant appealed.
Errors assigned were various rulings and instructions, quoting record seriatim.
All the assignments of error are overruled, the judgment is affirmed and the record remitted for the purpose of execution.
Stanley B. Jones, and Jesse Hyman, for appellant. -- The court erred in denying appellant's several motions for a continuance based on insufficient time, hostile public mind, necessity for expert witnesses and close confinement of appellant Com. v. Buccieri, 153 Pa. 535.
The court erred in denying appellant's motion for a continuance based on remarks of court as to appellants plea of "guilty" and statement "defendant would get no mercy from me": Surface v. Bentz, 228 Pa 610; Hale v. Hale, 32 Pa.Super. 37.
Courts have continued cases for reasons that newspaper articles published before the time of trial created such prejudice as to interfere with the jury: Com. v. Velverdi, 32 Pa.Super. 241; Com. v. Fletcher, 208 Pa. 137.
The court erred in permitting deceased's father to testify and in admitting in evidence deceased's clothes worn at the time of the shooting: Leib v. Painter, 42 Pa.Super. 399; Piper v. White, 56 Pa. 90, 93; Germantown Dairy Co. v. McCallum, 223 Pa. 554; Morgan v. Browne, 71 Pa. 130; Beam v. Gardner, 18 Pa.Super. 245; Burns v. R.R., 213 Pa. 280.
The court erred in failing to advert to the testimony of Private Kane having regard to the request made: Com. v. Colandro, 231 Pa. 343; Com. v. Wasson, 42 Pa.Super. 38; Com. v. Westley, 300 Pa. 16; Com. v. Ronello, 251 Pa. 329.
The court erred in refusing counsel's request to more fully review the testimony of Private Kane: Com. v. Russogulo, 263 Pa. 93; Meyers v. Com., 83 Pa. 131; Com. v. Keller, 191 Pa. 122.
The court erred in permitting the district attorney to elicit from defendant on cross-examination the commission of another offense unconnected with the crime charged, by propounding questions not of themselves relating to an offense but designed for the sole purpose of evoking answers which the district attorney knew and the court was informed would disclose the commission of another crime: Com. v. Pava, 268 Pa. 520; Com. v. Cicere, 282 Pa. 492.
Herman J. Goldberg, Assistant District Attorney, with him Thomas M. Lewis, District Attorney, for appellee. -- The court did not err in denying appellant's several motions for continuance: Com. v. James, 294 Pa. 156; Com. v. Delero, 218 Pa. 487; Com. v. Meyers, 290 Pa. 573.
Court did not err in denying appellant's motion for continuance based on remarks of the court as to appellant's plea of guilty.
Court did not err in permitting the father of the deceased to testify and admitting in evidence deceased's clothes worn at the time of the shooting: Com. v. James, 294 Pa. 156.
Court did not err in refusing to charge more fully on the testimony of Private Kane upon cross-examination: Com. v. Dennery, 259 Pa. 223; Com. v. Kaiser, 184 Pa. 493.
The court did not err in refusing to sustain defendant's objection to a certain question of the district attorney: Com. v. Melissari, 298 Pa. 63; Com. v. Emery, 273 Pa. 517; Com. v. Pava, 268 Pa. 520; Com. v. Mellor, 294 Pa. 339.
Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
Appellant, convicted of murder of the first degree and sentenced to death, submits a number of assignments in this appeal, by which he claims the court below committed error in his trial. The murder occurred about eleven o'clock at night, December 21st. Appellant, in company with two others, some time before the murder, visited the gas station in which deceased worked and it was agreed this was a good place to "stick up." Later, armed with a revolver, which had been taken by him from the keeper of his boarding house, he entered the station, inquired the location of the lavatory, and commanded the attendant to "stick 'em up." The latter, a boy aged 24, refused to obey the command and moved toward defendant who fired a shot. The boy was not armed, but he immediately seized his assailant and in the scuffle that ensued a second shot was fired. One of the shots struck the boy in the abdomen and from this wound he died in a few hours. The killer fled but was later apprehended and taken into custody. At the trial the defense was that, if the killing was done by defendant, his mind was in such a condition from excessive drink that he was mentally irresponsible.
The Commonwealth asked defendant a question on cross-examination which was objected to because it would develop an answer that would show he committed another crime entirely disassociated and separate from the offense for which he was on trial, and the district attorney knew these facts when the question was asked. The question was allowed. This, it is urged, was in violation of the Act of March 15, 1911, P.L. 20. The question was asked appellant when he was detailing where he had been before the attempted robbery, which resulted in this murder. It brought out the story of another hold up of a gasoline station committed some days before. Defendant described this crime in detail.
We have pointed out in many decisions the limitations imposed on the Commonwealth by the Act of 1911, and the circumstances under which it is proper to inquire as to other offenses: Com. v. Dorst, 285 Pa. 232; Com. v. Quaranta, 295 Pa. 264; also Com. v. Dague, 302 Pa. 13. However, this act must be read in connection with the Act of May 14, 1925, P.L. 759, and, when this is done, the former act is found to be modified as it relates to a phase of homicide trials: Com. v. Mellor, 294 Pa. 339; Com. v. Parker, 294 Pa. 144. This inevitably must follow, if the Act of 1925, which invested juries with the duty of determining the punishment to be administered in cases of capital offenses, is to be judicially administered. In Com. v. Parker, supra, 154, we said: "The Act of 1925 was not passed to help habitual criminals, and we take judicial knowledge of the fact that offenders of that designation have become so general that the law, not only lex scripta but non scripta, must advance to protect society against them." In that case a confession contained statements showing the commission of offenses by defendant other than the one on trial, and we held that it was not reversible error to allow the jury to have this information which was the same as a judge would consider when deciding what punishment should be inflicted for a crime. While the statement in this case might have militated against defendant in a general way, and without the Act of 1925 would have been improper, it became material evidence as an aid to the jury in determining the punishment to be inflicted and in ascertaining whether defendant is entitled to mercy. This class of criminal cases must not be confused with the authorities which exclude prior and subsequent acts as substantive evidence of the commission of a crime. It is here admitted for the sole purpose of enabling the jury to properly administer the punishment and the trial judge should be very careful to explain and emphasize this limitation in his charge to the jury.
A hearing was held and counsel were appointed to represent defendant at the hearing; afterwards they retired and the present counsel were appointed January 21st. Trial was set for February 3d. Before that date, a petition was presented for continuance on the ground of lack of time to prepare the case; it was refused. While it is true that counsel should have sufficient time in which to prepare all cases for trial especially where the matter involved is so vital as in the present case, there is nothing to show the court below abused its discretion in ordering defendant to be tried February 3d. While defendant's right is clear, those of society are also clear; it is important that their interests should be protected against unnecessary delays. Persons accused of crimes should be...
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