Commonwealth v. Newman

Decision Date12 March 1923
Docket Number38
Citation120 A. 474,276 Pa. 534
PartiesCommonwealth v. Newman, Appellant
CourtPennsylvania Supreme Court

Argued January 29, 1923

Appeal, No. 38, Oct. T., 1923, by defendant, from judgment of O. & T. Allegheny Co., June T., 1922, No. 17, on verdict of guilty of murder of the first degree, in case of Com. v Marcus W. Newman, alias Samuel Kaufman. Affirmed.

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

The opinion of the Supreme Court states the facts.

Verdict of guilty of murder of the first degree upon which sentence was passed. Defendant appealed.

Errors assigned were various instructions and the sentence, quoting record.

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

Morris Feldstein, for appellant. -- The court erred in its instructions as to the effect of proof of possession of recently stolen property, and the burden of proof resulting therefrom: Com. v. Chester, 77 Pa.Super. 388; Com. v. Berney, 28 Pa.Super. 61.

The courts erred in qualifying defendant's third point as to an accessory before the fact.

The fact that the court in another part of its charge stated the law correctly, does not cure the error: Com. v Deitrick, 218 Pa. 36; Com. v. Ross, 266 Pa. 580.

Harry A. Estep, Assistant District Attorney, with him Samuel H. Gardner, District Attorney, for appellee, cited: Wilson v. U.S., 162 U.S. 613.




Marcus W. Newman, alias Samuel Kaufman, appeals from a sentence condemning him to be electrocuted for the murder of James L. McCullough.

On February 26, 1921, about 6:30 a.m., McCullough, a United States railway mail clerk, was found unconscious at his desk in the car on which he worked, with his skull so badly crushed that he died within a few hours; beside him lay a large steel pin-bolt, with which the fatal blow evidently had been struck. Shortly after the discovery of the assault, there was found to be missing a jacket of registered mail (No. 273), containing identified bonds to a par value of $28,500, which had been delivered to McCullough an hour before. Four days afterward (March 2, 1921), defendant sold one of these securities through a firm of Philadelphia brokers, and between that date and June 3, 1921, he disposed of $25,000 worth of them through various brokerage houses in New York and Philadelphia. In all these transactions, except the first, when accused used his own name, he represented himself as Samuel Kaufman, and it was while masquerading under this alias, in an attempt to sell two other bonds taken from jacket No. 273, that he was apprehended, in March, 1922. A mass of circumstantial evidence was presented at trial, which carries conviction of defendant's guilt beyond a reasonable doubt.

The accused took the stand in his own defense, swore he had no connection with, or knowledge of, either the robbery or the murder, and gave the following explanation of his possession of the stolen bonds: They were given to him, he said, with a number of other securities, on March 1, 1921, by two men named Harry Katz and Moe Sternberg, who claimed to have obtained them in Chicago from a certain Samuel Kaufman (the prisoner's alias); the arrangement with these men, according to Newman's testimony, was that he should sell the bonds and receive in payment one-third of the proceeds plus a bonus of $5,000. Defendant stated he did not know where Katz and Sternberg lived during their course of dealing with him, and that he did not write to them, because, when there was any business to transact, the three always met "by appointment," usually in the lobby of a large hotel in New York City; when he was in New Orleans and desired, on two separate occasions, to pay his confederates $5,000 as their share of certain sales, he put $2,500 cash in each of two envelopes, and mailed them, unregistered, to Katz and Sternberg, "General Delivery, New York City."

The prisoner admitted he had sold only the bonds identified as taken from jacket No. 273 to the various brokers who appeared against him at the trial, and the evidence showed that his bank deposits approximated the value of these sales alone; nevertheless he claimed that Katz and Sternberg turned over to him a large amount of additional securities, which he had disposed of through representatives (whose names he did not know) of three other brokerage firms in New York and Philadelphia, all of whom, it appeared, had failed and suspended business dealings a few months prior to the trial. The story of these additional sales was evidently interposed by the prisoner to make it appear that he had not dealt exclusively in the stolen bonds. In this connection, Newman said that, on March 4, 1921, he sold three $1,000 Liberty bonds in jewelry stores in Pittsburgh; but, although he had lived in that city almost nine years and worked five years within a block of the section where he claimed these stores were located, he was unable to identify them by name or tell their situation with any precision.

When first arrested, Newman, who was armed with a loaded pistol, gave an address which turned out, upon investigation, to be an empty lot. He denied being the man who had opened the bank account with the West End Trust Company, through which some of the money realized from the sale of the stolen bonds passed; but, when taken there and fully identified, he admitted the account was his, though carried in the name of Kaufman. He refused the offered aid of both the government of the United States and the Pennsylvania Railroad's secret service to corroborate the tale about his mythical confederates, saying "He did not want to do them any harm"; and he declined to give information which would help the police to find either Katz or Sternberg, although he was endeavoring to place responsibility on them for acts charged against himself. According to defendant's testimony, he was an habitue of a billiard room in Pittsburgh, where he often met Katz and Sternberg, and he admitted knowing "quite a few [other] men," frequenters of this place, who also knew Katz and Sternberg well enough "to speak to them," yet he made no mention, by description, names or otherwise, of persons who might be called on to prove the existence of these two men. Moreover, while claiming, for purposes of his defense, to have had financial transactions with the men in question to the extent of many thousands of dollars beyond the value of the stolen bonds identified by the prosecution, he produced no corroborative writings or other evidence to substantiate his very improbable story.

In short, defendant's account of the existence of Katz and Sternberg and of his dealings with them, is uncorroborated both as a whole and in its details; his testimony explanatory of his possession of the stolen securities is not only entirely unconvincing, so far as his alleged innocence is concerned, but bears on its face such evidence of bad faith as tends strongly to support the case of the Commonwealth; and this fact the jurors had a right to weigh against him in deciding the question of his guilt (Com. v. McGorty, 114 Mass. 299, 303; State v. Raymond, 46 Conn. 345, 346), which the verdict indicates they did. When the proofs in the case are taken as a whole, they fully warrant a belief that accused himself stole the bonds subsequently sold by him; that he theft was committed by robbing the mail car, as stated above; and that, in the robbery, deceased was killed. This, whether the fatal blow was struck by defendant or a confederate, would be murder of the first degree under our statute, which the jury very properly found. The only question for us is, Where there trial errors which require a reversal of the judgment entered on the verdict?

In charging the jury as to the legal effect of possession of stolen property, the court said: "Where property has...

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22 cases
  • Com. v. Shaffer
    • United States
    • Pennsylvania Supreme Court
    • March 20, 1972
    ...of burglary and larceny. While there admittedly is some Pennsylvania law to support the majority position, see Commonwealth v. Newman, 276 Pa. 534, 120 A. 474 (1923) and cases cited therein, it preceded Owens, Leary and Turner, and cannot be considered controlling 1 At the time, the introdu......
  • Commonwealth v. Owens
    • United States
    • Pennsylvania Supreme Court
    • November 12, 1970
    ... ... the long and well established law of Pennsylvania that ... possession of recently stolen property raises a presumption ... of knowledge that the property had been stolen ... Commonwealth ex rel. Chatary v. Nailon, 416 Pa. 280, ... 283--284, 206 A.2d 43, 45; Commonwealth v. Newman, ... 276 Pa. 534, 539, 540, 120 A. 474; Commonwealth v ... Pittman, 179 Pa.Super. 645, 118 A.2d 214; ... Commonwealth v. Kaufman, 179 Pa.Super. 247, 116 A.2d ... 316; Commonwealth v. Joyce, 159 Pa.Super. 45, 46 ... A.2d 529 ... In ... Commonwealth ex rel. Chatary v. Nailon, supra, ... ...
  • Commonwealth v. Rodgers
    • United States
    • Pennsylvania Supreme Court
    • October 16, 1974
    ... ... now complained of, is not sufficient grounds for a new trial ... Compare Commonwealth v. Fell, supra; Commonwealth v. Zapata, ... supra; Commonwealth v. Heasley, supra; Commonwealth v ... Franklin, supra; Commonwealth v. Brown, 438 Pa. 52, ... 265 A.2d 101 (1970), and Commonwealth v. Newman, 276 ... Pa. 534, 120 A. 474 (1923) ... The remaining ... assignment of error we find necessary to discuss concerns the ... validity of the defendant's conviction of possession with ... intent to sell obscene books and films. The books and films ... were introduced into the evidence ... ...
  • Commonwealth v. Homeyer
    • United States
    • Pennsylvania Supreme Court
    • February 13, 1953
    ... ... 300, 306, 9 A. 878; ... Commonwealth v. Johnson, 162 Pa. 63, 29 A. 280 ... ‘ ... Possession of the fruits of crime is of great weight in ... establishing the proof of murder, where that crime has been ... accompanied with robbery.’ Commonwealth v ... Newman, 276 Pa. 534-540, 120 A. 474, 477. See also ... People v. Galbo, 218 N.Y. 283, 112 N.E. 1041, 2 ... A.L.R. 1220, 1224, 1225 (Justice Cardozo) ... Flight, manifestations of mental distress, fear at the time ... of or just before or just after discovery of the crime, an ... ...
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