Commonwealth v. Jones

• Citation: 341 Pa. 541,19 A.2d 389
• Decision Date: 14 April 1941
• Docket Number: 57
• Parties: Commonwealth v. Jones, Appellant
• Court: United States State Supreme Court of Pennsylvania

19 A.2d 389

341 Pa. 541

Commonwealth v. Jones, Appellant

No. 57

Supreme Court of Pennsylvania

April 14, 1941

Argued March 24, 1941.

Appeal, No. 57, March T., 1941, from judgment and sentence of O. & T. Allegheny Co., Sept. Sessions, 1940, No. 117, in case of Commonwealth v. Willie Jones. Judgment affirmed.

Indictment for murder. Before CULVER, P.J., specially presiding.

The opinion of the Supreme Court states the facts.

Verdict of guilty of murder in the first degree with penalty of death and judgment and sentence thereon. Defendant appealed.

Errors assigned, among others, were excerpts from the charge of the trial judge and various rulings on evidence.

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

Philip Sidransky and Ralph C. Davis, for appellant.

Earl R Jackson, Assistant District Attorney, with him Andrew T Park, District Attorney, for appellee.

Before SCHAFFER, C.J., MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.

OPINION

MR. PATTERSON, JUSTICE.

Willie Jones, appellant, was indicted and tried for the murder of Frank Akerson, of McKeesport, Pennsylvania. The jury returned a verdict of guilty of murder in the first degree and fixed the penalty at death. Appellant's motion for a new trial having been refused and judgment having been entered and sentence of death imposed, he has taken this appeal, claiming that the record discloses trial errors which deprived him of a full, fair and impartial trial such as he was entitled to.

Akerson, who was a meat-packing company foreman, was shot and mortally wounded at about 12:30 in the morning of June 1, 1940, as he was walking near the corner of Locust Street and School Alley, McKeesport, on his way home from work. He was taken to a near-by doctor's office by persons attracted to the scene by the shot, where the doctor informed him that he had not long to live, and thereafter was removed to the McKeesport Hospital, where he died at 10:21 the same morning. Before dying, Akerson stated to his wife that he had been followed and hailed by a colored man, that he, Akerson, asked the man what he wanted, that just then a car approached and he shouted for help, whereupon the colored man, while he "still had his hands up", "let him have it", and he stated to one of his employers, "You know that nigger shot me down like a dog". Death was ascribed to hemorrhage and shock due to a gunshot wound entering the chest through the arm-pit beneath the right arm, severing the spinal cord.

A Mrs. Edna Phillips, whose detailed description was largely responsible for appellant's apprehension as a suspect, positively identified him as the man whom, as she testified at the trial, she observed from her bedroom window, running from the scene of the shooting, 125 feet away, and stopping under her window, beneath a street light, to put "something" into his pocket. And, during the investigation of the crime, appellant himself identified one John Ryan, who testified that on the night of the killing appellant had followed him for several blocks and hailed him as he turned into his home, located near the scene of the crime, where he arrived between 12:00 and 12:15 a.m., as "the man that I followed up Locust Street that fooled me and went into the house".

Appellant was taken into custody for questioning on June 3, 1940. At first he denied any participation in the shooting, stating that he had not been out of his rooming house on the night in question and that at the time of the shooting he was in bed with his alleged girlfriend, one Anna Lou Davis, who lived at the same address. The truth of this assertion having been denied by the girl, appellant said that on the night of the shooting he had left his home at 11:18 p.m. and burglarized the house of one George Raback, but had returned by 12:25 a.m. When this statement was likewise proved to be false, the burglary having taken place on May 30, 1940, the night prior to the night of the killing, appellant, on June 7, 1940, made and signed a detailed written statement in which he admitted participating in an attempt to rob Akerson with a man named Spencer who, as it was subsequently learned, could have had no possible connection with the crime, but stated that Spencer fired the fatal shot. On June 8, 1940, appellant wrote a letter to the aforementioned Anna Lou Davis, asking forgiveness "for participating in that heinous crime", referring to the killing of Akerson, as he admitted, and thereafter, on June 13, 1940, he stated that "he wanted to get it over with, he was going to tell everything", whereupon he made a statement, later repeated in a more detailed statement given to the District Attorney, on June 17, 1940, which was reduced to writing and signed by appellant, relating that he alone intercepted Akerson, asking if there were any "good time houses" in that locality, that Akerson made an insulting remark to him and he thought Akerson was reaching for a gun, when he, appellant, pulled his gun from his pocket and it accidentally discharged.

On the following day, June 14, 1940, appellant pointed out where he had thrown the gun into the Youghiogheny river, and, on June 15, 1940, one John Phar delivered to the authorities a gun which he had found imbedded in the mud of the bank of the river at a point near that indicated by appellant. This gun was identified by appellant as his gun with which he had shot Akerson, and it was shown by the testimony of a ballistic expert, called by the Commonwealth, to have been the gun from which the bullet taken from the body of Akerson had been fired. In his statement of June 17, 1940, appellant detailed his movements on the streets prior to the shooting. He stated that after he had shot Akerson he returned to the unused attic of his rooming house, where he hid the gun behind a loose brick in the chimney, and that he threw it in the river the following day because, as they testified at the trial, his landlady and her niece had discovered that he had been in the attic and were curious as to his purpose in going there. He further stated that he identified the gun as his gun by the series of numerals appearing on its butt end, the first three figures of which he used in combination, in "playing the numbers".

At the trial appellant completely repudiated his statements and admissions, asserting that they had been procured by fear and abuse, and he denied that he was present at the time of the shooting, denied that he had ever owned the gun, and denied that he had shot Akerson or had ever seen him. He testified that he was at home at the time of the shooting, having arrived there about 12:07 a.m., which testimony was in no way corroborated. On this appeal the assignments of error, many of which are trivial and relate to matters which were not objected to, are principally directed against (1) the admission in evidence, as a dying declaration, of Akerson's statement to his wife as to the circumstances of the shooting, (2) the admission of appellant's signed statements, (3) the cross-examination permitted of appellant and of his character witnesses, and (4) against the charge as a whole.

The contention that it was error to admit the statement of Akerson to his wife, as a dying declaration, is without merit. "Whenever the victim of an assault is in a dying condition, and realizes it, his statements concerning the cause of his injuries are admissible in evidence. . . . His knowledge may appear from declarations made to or by him. The nature of the wounds is also important as bearing on the injured party's knowledge of his condition: Kehoe v. Com., 85 Pa. 127, 136. As stated in Wigmore on Evidence (2d ed.), volume 3, page 172: 'We may avail ourselves of any means of inferring the existence of such knowledge [that the declarant knew he was about to die]; and if, in a given case, the nature of the wound is such that the declarant must have realized his situation, our object is sufficiently attained. Such is the settled judicial attitude'": Com. v. Guida, 298 Pa. 370, 376. See also Com. v. Lockett, 291 Pa. 319, 323; Com. v. De Leo, 242 Pa. 510, 516. "Whether the belief in the approach of death was present is addressed in the first instance to the conscience of the court (Com. v. De Leo, 242 Pa. 510), but, after admission of the testimony, it is not error to charge that the jury, before considering the declaration, should be satisfied of the existence of this thought in the mind of the deceased at the time of its utterance": Com. v. Puntario, 271 Pa. 501, 504.

Here the deceased was informed by the physician, to whose office he was taken immediately after the shooting that he "had not long to live" and that his family should be notified. Later, at the hospital, and shortly before making the statement in question, he himself stated that "he thought he was dying". In view of the nature of his injuries, his spinal cord being severed, the information given him with no hope of recovery, his own statement indicating that he was fully aware of the seriousness of his condition, and the fact of his death following within a few hours, less than ten hours after the shooting, it may safely be assumed that Akerson realized he was about to die. The court, in its charge, carefully pointed out to the jury that Akerson's statement had not been made under the sanctity of an oath; also that it was made at a time when appellant was not present, and without opportunity for cross-examination. The jury was instructed that "if Mr. Akerson, when he made the statements [to his wife], realized that he was about to die and pass into the presence of his Maker, if he had no hope of recovering, then you should consider these statements and give them such weight as you...