Commonwealth v. New

• Decision Date: 28 May 1946
• Citation: 47 A.2d 450,354 Pa. 188
• Parties: Commonwealth v. New, Appellant
• Court: Pennsylvania Supreme Court

47 A.2d 450

354 Pa. 188

Commonwealth v. New, Appellant

Supreme Court of Pennsylvania

May 28, 1946

[Copyrighted Material Omitted]

Argued April 15, 1946

Appeal, No. 111, Jan. T., 1946, from judgment of O. & T Delaware Co., Sept. T., 1945, No. 424, in case of Commonwealth v. Woong Knee New. Judgment reversed.

Indictment charging defendant with murder. Before MACDADE, P.J.

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

The judgment of the court below is reversed and the sentence imposed is vacated and it is ordered that the record be remitted to the court below forthwith and that upon its receipt by that court the latter direct the immediate discharge from custody of the prisoner indicted, convicted and sentenced under the name of Woong Knee New.

It is also ordered that the sum of $1212.00 taken from the possession of the defendant when he was charged with the murder of Lee Joe be returned to him when he is discharged from custody and that his personal receipt therefor be taken and filed with the record of this case in the court below. The defendant's signature to the receipt shall be witnessed by at least one of the judges of the court below.

Theodore Smithers, with him Frank I. Ginsburg, for appellant.

R. Paul Lessy, Assistant District Attorney, with him C. William Kraft, Jr., District Attorney, and Raymond R. Start, for appellee.

Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.

OPINION

Mr. Chief Justice Maxey

For a long period prior to June 24th, 1945, Lee Joe, ^[*] a Chinaman aged 70 years at that date, conducted a laundry at a small one-story dwelling at 2616 West 3rd Street, Chester. At 9:15 A.M. Sunday, June 24th, he, clad only in an undershirt, was found lying in a pool of blood on his bedroom floor. He had three lacerations at the right side of his head and one in the middle of the back of his head. The cause of his death was multiple fractures of the skull. On the floor were cigarette butts, an over-turned ash-tray and a hammer handle. The bloody hammer which fitted the handle was found on a shelf. No finger marks were found on the hammer or the hammer handle. No finger marks of the defendant were found on any object in the victim's house. The pockets of the victim's clothes were turned inside out. On the bed was an empty purse and a brown hat with a small red feather in it. In the kitchen a money box was found. At 2:00 P.M. on June 23rd, a colored girl, Ethel M. Williams, who worked for Lee Joe, saw him as he gave her her wages, with a roll of money "one inch thick" and which contained "some fives and twenties, fifties and a one-hundred". The only money found on his premises was in a barrel and it amounted to $123.00.

Woong Knee New, (usually referred to as Knee New), also a Chinaman, now aged 41 years, had visited Lee Joe once or twice a week for fourteen months. They were friendly and called each other, respectively, "Son" and "Pop". Knee New had been in the United States about two years and had worked in the Sun Shipbuilding Yards for about eighteen months. His last day at work was Monday, June 18th, 1945. He then quit work because the plant for deportation to China. Two years earlier, Knee New had come from Singapore; within a day after the murder he was arrested in New York by immigration agents as an "illegal entry" and was lodged at Ellis Island for deportation. Earl H. Allen, a Delaware County Detective, who interviewed Knee New at Ellis Island on Tuesday, June 26th, testified that the defendant told him that he left Chester Sunday morning, June 24th. The detective again saw Knee New at Ellis Island, in company with Detective Horris and Croak of the New York City Force, and Francis Holt, of the Chester Police. He said the questioning was done by Detective Horris because the defendant "seemed to understand him better than anyone else". The conversation was in English and no stenographic notes were taken. The defendant, in reply to questions, told the officers (so it is alleged) that he had left Chester at 10:30 A.M. June 24th and reached New York at 12:30 P.M. and went to his cousin's home at 316 Mott Street, that he had worked at the Sun Shipbuilding Yard for 18 months and that he had 4 days' pay coming to him. Detective Holt asked Knee New if he had any money. He answered "No". He was searched and a few dollars were found. Then Detective Holt raised his shirt and a money belt which contained $1212 was found. None of this was ever identified as Lee Joe's money. The officers asked him if he would go back to Pennsylvania and he said he would. The next day the officers took him to the New York City Police Department. He was then questioned for the first time about the murder of Joe Lee. He was asked: "When did you see Lee Joe last?" He replied: "Last Saturday night, Sunday morning." In reply to further questionings, he said: "I was with Lee Joe until 4:00 A.M." and that he had "a glass of beer". He was then asked: "What was Lee Joe doing?" and he replied: "He was ironing clothes and I wet clothes to help him." Holt then asked: "What was Lee Joe doing when you left him on Sunday morning?" The defendant then put his hands on his stomach and said: "I sick; I sick; no more questions." The detective said: "That was the last of the conversation."

On June 19th, 1945, the defendant had withdrawn from a Chester Bank $308.16, including three $100 bills. On the following day, he went to New York and withdrew from a Bank eight $100 bills and a $50 bill. This was proved by his own testimony and by the bank records and by bank officers. These withdrawals were allegedly due to the fact that he was afraid he was about to be deported to China. He said: "Immigration office pick up somebody else and then I was so afraid that I didn't dare to go to work." He had $47.29 coming to him from the Sun Shipbuilding Company. When asked why he didn't draw that money out, he answered: "I didn't dare to take money out", indicating thereby that he didn't dare go where the immigration authorities were. On Thursday, June 20th, according to his testimony, he went back to Chester and sent from there by parcel post to New York some bags of personal belongings and then he visited a sick friend, Tee Soy, in the Chester hospital. This friend paid him $10, which he owed him. The defendant testified that he left Chester for New York at 1:05 A.M. Friday, June 22, 1945, and did not return until after his arrest.

The Commonwealth claimed that he was in Chester on June 23rd and 24th. He refused to return to Chester voluntarily and he was extradited after proceedings in New York City on July 28, 1945, when he also denied being in Chester on June 23rd and 24th. He was indicted and after trial he was convicted of murder in the first degree and the jury fixed the penalty at life imprisonment. The motion for a new trial was overruled; this appeal followed.

To obtain a conviction the Commonwealth relied upon circumstantial evidence. Such evidence is legal evidence and it may be of great probative value. All circumstantial evidence is based in part upon "positive" or direct evidence, or what Wigmore calls "testimonial evidence". The circumstances from which the major fact in issue is to be inferred have to be proved chiefly by testimonial or positive evidence. If the so-called "positive" evidence is erroneous or merely conjectural, no reliable inference can be drawn from it. So-called "positive" evidence is often based in fact upon inferences, i.e., circumstantial evidence, as Chief Justice GIBSON pointed out in Com. v. Harman, 4 Pa. 269, 272.

"Each class [of evidence] has its special dangers and its special advantages". Wigmore on Evidence, 3rd Ed., Sec. 26, p. 402. In Com. v. Webster, 5 Cush. 295, 311, Chief Justice SHAW said: "The disadvantage [of positive evidence] is, that the witness may be false and corrupt, and that the case may not afford the means of detecting his falsehood.... The disadvantages [of circumstantial evidence] are, that a jury has not only to weigh the evidence of facts, but to draw just conclusions from them; in doing which, they may be led by prejudice or partiality, or by want of due deliberation and sobriety of judgment, to make hasty and false deductions;..." In Com. v. Libonati, 346 Pa. 504 (a murder case), this court said, p. 508: "The requirement of the law is that in order to warrant a conviction the facts and circumstances proved must be of such character as to produce a moral certainty of the guilt of the accused beyond any reasonable doubt -- not that they need be absolutely incompatible with his innocence -- and that doubt is for the jury unless the evidence 'be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances'." (Citing cases). See also Com. v. Bausewine, 354 Pa. 35, 41. In Com. v. Bone, 64 Pa.Super. 44, the Superior Court said that evidence sufficient to implicate an accused in a crime "must be something more than evidence showing remote connection between the accused and the crime, or evidence that merely raises a suspicion of guilty intention: 5 Corpus Juris 579". An accused is entitled to an acquittal if his guilt of the crime charged is not the only reasonable interpretation of which the facts adduced against him are susceptible. Guilt must be proved and not merely conjectured.

Measured by the foregoing established standard of proof, the Commonwealth's proof is utterly inadequate. The two "cornerstones" of its case are these alleged facts (1) The defendant was with Lee Joe at 4:00 A.M. June 24th. The Commonwealth claims that the defendant when arrested admitted this. How he fixed this time so...