Commonwealth v. Silcox

• Decision Date: 14 May 1894
• Docket Number: 164
• Citation: 29 A. 105,161 Pa. 484
• Parties: Commonwealth v. Silcox, Appellant
• Court: Pennsylvania Supreme Court

29 A. 105

161 Pa. 484

Commonwealth v. Silcox, Appellant

No. 164

Supreme Court of Pennsylvania

May 14, 1894

Argued March 2, 1894

Appeal, No. 164, Jan. T., 1894, by defendant, William Silcox from judgment of O. & T. Montour Co., on verdict of guilty of manslaughter. Reversed.

Indictment for murder. Before IKELER, P.J.

At the trial it appeared that, on May 4, 1893, the prisoner shot Franklin Gallagher in the leg, and that five days afterwards Gallagher died from the wound. At the time of the shooting it appeared that both the deceased and the prisoner had been drinking, and evidence for the prisoner tended to show that they were close friends.

When Thomas Macaffery, a witness for the Commonwealth, was on the stand, he was asked: "Q. State whether or not Frank Gallagher knew his condition. A. He did Thursday morning yes, sir. Q. What did he say to you? A. I says to him on Thursday morning, about, I guess, in the neighborhood of six o'clock, he says to me: 'Tom, I am gone.' Q. What did he mean by that, do you know? [Objected to.] Q. What followed? A. Then I asked him, I says: 'Frank, how does this happen?' [Objected to.] Q. The night before that time did Frank Gallagher realize his condition, do you know? A. About three o'clock in the morning, when the puddlers' whistle was blown, yes sir, on Thursday morning, the day he died. He died in the evening five minutes till eight, he came to his senses about three. We took notice to it first hearing the puddlers' whistle. Q. Did you or not think he was dying at any time through that night? A. Yes, sir. Q. State to the court and jury his condition between two o'clock Thursday morning and four. A. In the neighborhood of about four o'clock he kind o' fainted away that we called the whole family up, thought he was gone that he was dead. That was Thursday morning about four o'clock as near as I can tell. Q. What was the first expression that Frank made to you after he came to? A. The first he made to me after he came to, he says: 'I believe I am gone, Tom.' That was a good while after though -- in the neighborhood of two hours may be afterwards, or more."

Defendant objected because the commonwealth had not laid sufficient ground upon which to introduce the declarations of a dying man as his dying declarations or as testimony in this case. Objection overruled, exception. [12]

"Q. Now state to the court and the jury exactly what was said by Frank Gallagher. A. I said to him: 'Frank, how did this happen?' He says: 'I went out with Silcox, and we went in, and Silcox put some meat on the stove to fry, and the cat started to run round, and I said I would either feed those cats or shoot them, and he says, Gallagher, you insult me and I will shoot you. And I got up and went to the door and got my coat and put it on, and I turned round to get my hat, and Silcox came downstairs and let fly.'"

The court charged in part as follows:

"This painfully interesting case is now drawing to a close, and is about to be submitted to you upon the facts as developed by the evidence and the law as declared by the court, in order that you may pronounce a verdict between the commonwealth and the defendant. It is no doubt a serious and painful duty to you; but you must not shrink from the task, regardless of whether you will receive the approval of one class of men of the community or the condemnation of another. Every fair-minded person who has witnessed the trial must be satisfied of its fairness, regularity and impartiality up to the present time, let his own opinion of the merits of the cause be as it may. And I am sure that nothing which is left to be done by you will impair its general character. [While justice is to be tempered with mercy, you will see to it in your deliberations that your compassion for the accused shall not work wrong and injustice to the commonwealth. Frank Gallagher, the deceased, was -- and all citizens who survive are -- as much entitled to the protection of the law as is the prisoner at the bar;] and in considering the evidence and in determining this case, you will lay aside all sympathy for the one side or for the other. Let love, hate, passion or feeling be banished from your minds; be guided and governed in your decision by the pure, high and noble motive of observing the law and arriving at the truth according to the evidence. If you discharge your duty conscientiously -- as we have no doubt you will -- whether your verdict be popular or unpopular, you may defy the censure of those whom it may displease, as I know you would disregard the applause of those whom it may please. In performing my duty I have and will conscientiously regard the oath which obliges me to faithfully and impartially administer the laws according to my best skill and judgment. And in discharging yours you will have due regard to that oath which imposes upon you the obligation well and truly to try the cause between the commonwealth and the prisoner at the bar, according to the law and to the evidence, which has been given you in the case.

"The defendant, William Silcox, stands charged in this indictment with the crime of murder. The district attorney, with the consent of the court, has withdrawn the charge of murder of the first degree and asks only for conviction of murder of the second degree or of voluntary manslaughter, either of which you may find if the evidence warrants it. The unlawful killing of a person otherwise than by means of poison or of lying in wait or by any other kind of willful, deliberate and premeditated killing -- but with malice suddenly produced -- is murder of the second degree. Manslaughter is the unlawful and felonious killing of another without malice either express or implied. Where, upon a sudden quarrel, two persons fight and one kills the other, it is manslaughter; so if a man be greatly provoked by gross indignity and immediately upon the first transport of passion kills his aggressor, it is manslaughter. In these and such like cases, the law kindly appreciating the infirmities of human nature, extenuates the offence committed and mercifully hesitates to put upon the same footing of guilt the cool, deliberate act and the result of hasty passion and action. Manslaughter lies where the injury producing death was inflicted with a design and purpose to kill. But only in the heat of passion or without malice. It also lies where death results unintentionally, so far as the defendant is concerned, from an unlawful act on his part. The law of this state punishes the first offence of murder of the second degree with imprisonment by separate and solitary confinement at labor not exceeding twenty years, and voluntary manslaughter by imprisonment by separate and solitary confinement at labor (or by simple imprisonment) not exceeding twelve years -- in the discretion of the court -- and by a fine not exceeding one thousand dollars, and demands security for good behavior during life or for any less time, according to the nature and enormity of the offence.

"Under this indictment, if the evidence warrants it -- as explained in our instructions -- you may find the defendant guilty either of murder of the second degree or of voluntary manslaughter; or you may find the defendant not guilty.

"[If all the evidence in the case proves to the satisfaction of your minds beyond a reasonable doubt that the defendant, in cool blood, not in the heat of passion, not demented by gross intoxication, shot the deceased and thereby inflicted upon his leg a wound, which wound accelerated or caused blood poisoning to set in, killing or causing the death of the deceased five days after such shooting and wounding, then you might find the defendant guilty of murder of the second degree.]

"[If you find from the evidence, beyond a reasonable doubt, that the defendant did, upon a sudden quarrel or provocation and without malice, shoot and wound the deceased, that such shooting and wounding caused blood poisoning to set in, and that from such disease he died on the fifth day after the shooting, then the offence would be manslaughter, and your verdict would be accordingly -- all other requirements of fact and law, as we have or will instruct you, being made out.]

"If you have any reasonable doubt arising on and from all the evidence in the case, as to the defendant being guilty either of murder of the second degree or of manslaughter, as we have already explained them to you, then you should simply find the defendant not guilty.

We instruct you that malice, within the meaning of the law, includes not only ill-will, anger, hatred and revenge, but is implied in the doing of any action flowing or following from a wicked and corrupt motive -- from any deed done with a wicked mind, attended with such circumstances as plainly indicate a heart regardless of social duty and fully bent on mischief; hence malice is implied from any deliberate and cool act committed against another, however suddenly performed, which shows an abandoned and malignant heart.

[Now as to the facts in this case: On the sixth day of May last, it appears from the testimony, if you believe the witnesses, that Frank Gallagher left his home in this borough of Danville at about three or four o'clock in the afternoon and went out upon the streets, and upon Mill street met the defendant Silcox and perhaps others. That Gallagher and Silcox drank together. That at one place drink was refused Silcox, who offered in payment bread tickets; but that he subsequently procured a pint of liquor, a portion of which -- if we recollect aright -- and if we mis-recite any part of the testimony, we ask to be corrected -- was drunk and the rest taken by Silcox to his house, whither he was accompanied by the deceased; that upon the afternoon or evening of...