Commonwealth v. Keller

• Decision Date: 24 April 1899
• Docket Number: 414
• Citation: 191 Pa. 122,43 A. 198
• Parties: Commonwealth of Pennsylvania v. Joseph Keller, Appellant
• Court: Pennsylvania Supreme Court

43 A. 198

191 Pa. 122

Commonwealth of Pennsylvania v. Joseph Keller, Appellant

No. 414

Supreme Court of Pennsylvania

April 24, 1899

Argued February 23, 1899

Appeal, No. 414, Jan. T., 1898, by defendant, from judgment of O. and T. Lackawanna Co., Oct. T., 1898, No. 24, on a trial of indictment for murder. Affirmed.

Indictment for murder. Before EDWARDS, J.

At the trial it appeared that on July 31, 1898, the prisoner killed Peters Meyers by shooting him with a pistol. There was evidence that there had been a previous quarrel between the men, and that they had made threats against each other. Some of the threats made by the deceased had been communicated to the prisoner, and some had not.

After the commonwealth had called sixteen witnesses to the occurrence and had rested, counsel for the prisoner made the following request:

"We ask (the evidence in this case disclosing the fact that Lown was an eye-witness to this shooting) that the commonwealth be required to produce him as a witness in this case."

The district attorney replied that he had called all the eye-witnesses to this affair; that it is discretionary with the district attorney as to what witnesses he shall call in making out the case of the commonwealth; that there is no compulsion to call all the eye-witnesses in a homicide case and that it is within the knowledge of the district attorney that the witness referred to is an adverse witness to the commonwealth.

The Court: Under the circumstances and the testimony referred to being necessarily cumulative I will decline to direct commonwealth to have the witness mentioned sworn.

Exception noted for the defendant, at whose request a bill is sealed. [4]

The commonwealth offered in evidence three photographs of Meyers for the purpose of showing by way of rebuttal that there was not the disparity between the size and weight of the defendant and the deceased, it having been shown that the pictures are the pictures of the deceased by several of the defendant's own witnesses.

The offer was objected to as being incompetent, the pictures not being sufficiently identified for the purpose for which they are offered, and there being no evidence showing when they were taken or whether they were a likeness of the deceased at the time of the killing, and are incompetent for the purpose offered.

The Court: There is only one part of the objection that is good.

Mr Jones, district attorney: I will call a witness on that point.

Phillipena Bender recalled for commonwealth, testified as follows:

Mr. Jones: "Q. Who does that picture represent? (Commonwealth's exhibit 'No. 1' shown witness.) A. Mr. Meyers. Q. And yourself? A. Yes, sir. Q. When was that photograph taken? A. I couldn't say. Q. Well about? A. About five months after he got killed? Q. It couldn't be taken five months after he got killed? A. Five months before, I should say. Q. Before he was shot? A. Yes, sir. Q. Is that a true likeness of him? A. Yes, sir."

Mr. Jones: "Was there any change in his physical condition in regard to weight or otherwise to your knowledge, since the taking of the picture up to the time of his death?"

Mr. Scragg, of counsel for defendant: We object to the question as being incompetent and improper.

The Court: The objection is overruled; exception noted for the defendant at whose request a bill is sealed.

Mr. Jones: "Q. Did he remain about the same? A. No, sir, he got thinner, he didn't weigh so much. Q. He didn't weigh so much at the time of his death as he did at the time the picture was taken? A. No, sir.

On cross-examination the witness testified

Mr. Scragg: "Q. What you mean to say to Mr. Jones is that these picture are not a good likeness of him, that he was thinner at the time of the shooting than in the picture? A. Yes, sir. Q. And that these are not good photographs of him on that account; they are not correct photographs? A. They are correct. Q. They don't show him as he was at the time of the shooting. A. No, sir."

REDIRECT EXAMINATION.

Mr. Jones: "Q. Does that represent you in those photographs and tintype? A. Yes, sir. Q. Who were they taken by? A. One was taken by Mr. Frey and I don't know who the others were."

The commonwealth offered the photographs in evidence.

Mr. Scragg: We object to the offer.

The Court: I admit exhibit "No. 1" in evidence, and exclude the other two; exception noted for defendant at whose request a bill is sealed. [5]

The court charged in part as follows:

There are some undisputed facts, facts that are admitted by the defense. That Peter Meyers was killed on the afternoon of July 31, 1898, in this county, is beyond question; that fact is not in dispute; that he was slain by the defendant is also admitted. The defendant's revolver is here, the weapon with which the killing was done; it is identified not only by witnesses for the commonwealth, but by the defendant himself, and the leaden messengers of death that caused the death of Peter Meyers are also produced here in evidence. The cause of death is not disputed, cannot be, very well, under the evidence. The coroner mentioned at least two of these wounds that were necessarily fatal. Those are undisputed facts in the case, and the question is what conclusion will the jury come to as to this homicide. Was the defendant justified that day in killing Peter Meyers? If he was, then he is not guilty of any crime. Was the deed committed in the heat of blood and passion and under great provocation? If it was then he would be guilty of manslaughter. Or will you come to the conclusion that he is guilty of murder of the second degree, or will you say by your verdict that he is guilty of murder of the first degree? In considering the evidence you will naturally begin with the evidence which throws a light on the previous relations of these two men, Joseph Keller and Peter Meyers. There is evidence on both sides as to threats made by the defendant against Peter Meyers and threats made by Peter Meyers against the defendant. It is for you to decide whether the evidence is true on these points. You have heard the testimony of the witnesses. But, in considering the evidence, as I have said, you will begin with the evidence that throws a light upon the relation of the two men, one to the other; and these threats on one side and on the other, if you believe that they were made, will show you the condition of mind of these two men when they came near or when they approached each other, at least it will have a tendency to do that.

Now what were the circumstances immediately preceding this homicide? There was a dispute about the shooting of pigeons; the two men met in regard to that question; they met I think at Keller's house, and you heard the testimony of Miss Bender on that question when she said that during the quarrel or discussion, whatever you might call it, the defendant pointed a rifle through the window from upstairs, and told them to go away or else he would drop both of them. Then you have some declarations which were testified to by some of the witnesses as occurring after the homicide. I call your attention to these because they ought to be taken in connection with any previous threats. You remember the testimony of Miss Bender. She says that when coming from the railroad or coming up the railroad the defendant told her that Meyers, using a profane term which I will not repeat to you now, but referring to Meyers, ought to have dropped long ago. And I think it is Mr. Schuller also that testifies to a remark made by this defendant after the shooting when he told him "Don't touch that corpse or you will get the same dose as he got." Now there may be some other testimony to this effect. There you have the testimony of the commonwealth as to the threats made by the defendant against Meyers previous to the shooting, and you have the testimony that I have already referred to as to the declarations of the defendant after the shooting. They belong to the same class of evidence, because they tend to show the condition of the defendant's mind so far as it relates to the homicide. It may throw some light upon his intention, and it may raise his defense in question in the minds of the jury. But there are other threats in the case. There is considerable testimony here that Meyers made many threats against the defendant. You have the testimony of Byron Davis, his father-in-law, stating that he would kill Keller, using a vile term, and that he would "do him." And also the evidence of Mrs. Bird at the time that he showed the iron or steel knuckles, saying that he had something to fix somebody, and that he would be able to kill a man by hitting him in the right place. And further, when he went down the alley, after the discussion about the pigeons was over, she told him he better not go, and then he said, "I will head off Keller," but did not call him by that name, used a vile term, "and if he touches me I will kill him or he will kill me." Then you have the testimony of the officer, Charles Lown, who said he heard Meyers make the threat he would get even with him before night. Then the testimony of Lizzie Slack and Minnie Keiser. Lizzie Slack testifies in substance the same as Mrs. Bird. Mrs. Keiser says Meyers made declarations that he would kill Keller or Keller would kill him before the sun set. There may be testimony of other witnesses of this nature.

Now the purpose of the evidence as to threats on the one side and the other is twofold. [The threats made by Keller against Meyers are depended upon by the commonwealth for the purpose of showing Keller's attitude towards Meyers; that he had malice in his heart; that he had anger in his mind towards him; that he made these threats, and that what happened afterwards upon the railroad was in...