Commonwealth v. Rhoads

Decision Date30 October 1903
Docket Number81-1903
PartiesCommonwealth v. Rhoads, Appellant
CourtPennsylvania Superior Court

Argued May 5, 1903 [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of O. & T. Somerset Co.-1902, on verdict of guilty in case of Commonwealth v. Philip Rhoads.

Indictment for murder.

The facts are stated in the opinion of the Superior Court.

Mr Ruppel: The commonwealth having proved by the testimony already in that John Ake was present at the time of the shooting of Robert Maurer, the defendant demands that the commonwealth call John Ake on the witness stand before closing, witness Ake being present in the courtroom.

Mr Koontz: This offer is objected to for the following reason: That the commonwealth has not shown that Ake was present all the time during an attempt of the shooting; that Ake was not known to the witnesses of the commonwealth; that he was not present at the house of Herman Swank, and the witnesses only testified that they saw a man running in the field who afterwards turned out to be Ake.

The Court: We must decline to make peremptory order that the commonwealth call the witness, Ake, under the circumstances of the case. Witness Ake can, of course, be called for the defense when their side of the case is opened, and we think this case, at this stage, is not such as would compel us to deny to the district attorney and the commonwealth the right of discretion as to the proper manner of trying the cause. Exception noted to the defendant and bill sealed.

Mr. Ruppel: We propose to prove by the witness on the stand that he had been informed prior to this time that Maurer was a desperate character and he would defend himself with a gun if an officer would undertake to arrest him; that he was in the habit of associating with the Ludys, getting into fights with them, and both he and they carried revolvers; and that he had been cautioned that afternoon by William Gilbert, over the telephone, that he should be very careful or he would get hurt in making the arrest. This to be followed by proof that the information he received was correct and reliable.

Mr. Koontz: This proof is objected to as irrelevant and inadmissible, for the reason the testimony of the witness on the stand has already disclosed that he followed in pursuit of Maurer who was simply charged with a misdemeanor, and began firing. That it was his own act that brought on the condition of things at that place; that his act was illegal, and therefore it is incompetent for him to give evidence of the bad character of the defendant or any persons with him, they not having molested him when he went out and called halt.

The Court: For the present the objection is sustained, the evidence excluded and a bill sealed to the defendant.

The commonwealth offered a paper purporting to be the dying declaration of Robert Maurer.

Mr. Ruppel: This paper is objected to for the following reasons:

1. The commonwealth has not laid the ground by sufficient and proper proof for its admissibility.

2. There is not sufficient proof as to the belief on the mind of the deceased at the time the statement was made, as to the wound being mortal or the near approach of death.

3. The last two statements of the paper are put in the form of an interrogatory so as not to indicate clearly what the deceased intended to say in answer and whether this question had been put to the declarant before the paper was presented or whether it was the intention to answer the question in the paper.

4. The evidence does not show that at the time the paper was executed Robert Maurer understood the purpose for which the paper was to be used, or the declarations contained therein; and neither was anything said to him at that time or by him or by any other person in his presence as to the probable effect of the wound.

5. The paper contains statements that are not evidence in this form.

The Court: The court being of the opinion that sufficient proof has been offered by the commonwealth to support the offer of the paper in evidence as the dying declaration of Robert Maurer, the paper is admitted in evidence, and an exception noted to the defendant and bill sealed.

Said paper reads as follows:

" Commonwealth of Pennsylvania, County of Somerset, ss.

" Personally appeared before me, a justice of the peace, in and for Somerset county, Pennsylvania, Robert Maurer, who hereby makes as he verily believes his ante mortem statement.

" That on the evening of July 19, 1902, he was at the residence of Herman Swank, in Lincoln township, Somerset county, Pennsylvania. Harry, James, and John Ludy were with me. Harry Ludy came out and told me to run Bob. Philip Rhoads was on the porch steps when I started to run, and as soon as I started to run he began to shoot at me, and after I had run past a hay shed on the land, or near the residence of Herman Swank, one hundred and fifty steps, Philip Rhoads shot me in the back, near the hip. At no time during all this was I called to halt. When he shot me I fell, and when he came to me I said you shot me and he said you are damned right I shot you. In answer to the question: Did you shoot at Philip Rhoads? Answer -- No, I did not. I had nothing to shoot with. He, Philip Rhoads, and the man with him, shot at me twelve or fifteen times.

" Robert Maurer.

" Sworn and subscribed before me this 20th day of July, A.D. 1902.

" J. A. Risinger, J. P.

" And in the presence of these witnesses:

" H. F. Pile.

" C. M. Ankeny."

Defendant presented these points.

2. If at the time the fatal shot was fired the defendant believed his life was in danger or that he was in imminent peril of great bodily harm, and he fired the shot in self-defense, then the jury should return a verdict of not guilty. Answer: This is affirmed if the jury find it was necessary to fire the shot to protect his life, or himself from great bodily harm.

4. Under the evidence in the case, it was the duty of the defendant to execute the warrant for the arrest of Robert Maurer, and, as an officer, he had no right to desist from or abandon his efforts simply because Maurer tried to escape. The more Maurer endeavored to escape the more imperative became the duty of Rhoads to make every effort for his capture, and he could not properly, as a private citizen might have done, give up the chase and allowed the accused to escape. Answer: We affirm this point, with the qualification that he should make every reasonable effort. As we have already said to you, in the execution of a warrant for a misdemeanor, an officer could not kill the person named in the warrant as an " effort for his capture."

Affirmed.

W. H. Ruppel, with him A. H. Cofforth, George R. Scull and John R. Scott, for appellant. -- The shooting was justifiable: State v. Barfield, 8 Iredell, 344; Hurd v. People, 25 Mich. 405; Com. v. Keller, 191 Pa. 122.

While it is not absolutely essential that the apprehension of the declarant should be shown by declarations coming from him, as it may be established by other facts and circumstances, yet the whole of the testimony, as it was given on the trial fails to show that the deceased, at the time this statement was made, believed that his death was near at hand: ...

To continue reading

Request your trial
3 cases
  • Commonwealth v. Danz
    • United States
    • Pennsylvania Supreme Court
    • April 17, 1905
    ... ... the crime charged is applied by the courts of this state: ... Shaffner v. Com., 72 Pa. 60; Com. v. Birriolo, 197 ... The ... commonwealth should have satisfactorily accounted for not ... calling Dr. McFarland: Com. v. Rhoads, 23 Pa.Super ... 512; Com. v. Bubnis, 197 Pa. 542 ... John C ... Bell, district attorney, with him Owen J. Roberts, assistant ... district attorney, for appellee. -- The corpus delicti was ... proved: Zell v. Com., 94 Pa. 258; Gray v ... Com., 101 Pa. 380; People v ... ...
  • Commonwealth v. Crowley
    • United States
    • Pennsylvania Superior Court
    • July 28, 1904
    ...against excessive assault by one whom he attempts to arrest for what he considers proper cause, committed in his presence: Com. v. Rhoads, 23 Pa.Super. 512; Com. v. Weathers, 7 Kulp, 1; Com. v. Max, 8 Phila. 422. An arrest may be made for the breach of an ordinance made for the preservation......
  • Geiger v. Madden
    • United States
    • Pennsylvania Superior Court
    • February 24, 1915
    ...become the majesty of the law to justify such a sacrifice in order to prevent one charged with a mere misdemeanor from escaping: Com. v. Rhoads, 23 Pa.Super. 512; on Homicide, 738. A fortiori it is not justified upon mere suspicion not based on reasonable and probable grounds. When the time......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT