Commonwealth v. Troup

• Decision Date: 05 January 1931
• Docket Number: 277
• Citation: 302 Pa. 246,153 A. 337
• Parties: Commonwealth v. Troup, Appellant
• Court: Pennsylvania Supreme Court

153 A. 337

302 Pa. 246

Commonwealth v. Troup, Appellant

No. 277

Supreme Court of Pennsylvania

January 5, 1931

Argued November 24, 1930

Appeal, No. 277, Jan. T., 1930, by defendant, from judgment of O. & T. York Co., Aug. T., 1929, No. 1, on verdict of murder of the first degree, in case of Commonwealth v. Jacob Troup. Affirmed.

Indictment for murder. Before SHERWOOD, J.

The opinion of the Supreme Court states the facts.

Verdict of guilty of murder of the first degree with penalty fixed at life imprisonment, on which judgment of sentence was passed.

Errors assigned were various instructions, quoting record.

The assignments of error are overruled and the judgment of the court below is affirmed; the record to be remitted in order that the sentence may be carried out.

James G. Glessner, for appellant. -- Malice is presumed from the use of the gun; but malice is also an element in second degree murder: Johnson v. Com., 24 Pa. 386; Kelly v Com., 1 Grant 491.

Whatever negatives the existence of deliberation, or when not clearly shown to be present, or reasonable doubts of its presence remain, or it does not appear whether life was not taken in passion and tumult, under all such circumstances, the grade is fixed by the presumption of law as of the second degree.

If the evidence raised a reasonable doubt in the minds of the jury as to defendant's belief, he was entitled to that doubt Tiffany v. Com., 121 Pa. 165.

If several armed men go to a dwelling house in the night time for the purpose of seizing the owner, without lawful authority, and one of them is killed in an effort to prevent the seizure, the killing at most is manslaughter.

When, therefore, on a trial for murder there was evidence tending to show that an attack was made on defendant, so violent as to warrant him in believing that he was in danger of great bodily harm or loss of life unless he used a pistol in self-defense, it was error to refuse to charge that if that evidence raised a reasonable doubt of the crime of murder in the second degree, it would operate to acquit of it: Tiffany v. Com., 121 Pa. 165.

Ralph F. Fisher, District Attorney, for appellee, cited: Com. v. Palmer, 222 Pa. 299; Com. v. Nelson, 294 Pa. 544; Com. v. Green, 292 Pa. 579; Com. v. Hopkins, 50 Pa. 9; Com. v. Latampa, 226 Pa. 23; Com. v. Micuso, 273 Pa. 474; Com. v. Nicely, 130 Pa. 261, 271; Com. v. White, 6 Binney 179.

Before FRAZER, C.J., WALLING, SIMPSON, KEPHART, SADLER, SCHAFFER and MAXEY, JJ.

OPINION

MR. JUSTICE SADLER:

Jacob Troup, the defendant, was convicted of murder of the first degree, the jury fixing his punishment at life imprisonment. Sentence followed the refusal of a new trial, whereupon the record was removed to this court on appeal, and we are asked to reverse because of several trial errors assigned. A brief statement of the facts involved is necessary to an understanding of the legal objections raised.

From the record it appears that one Albert Toomey first charged Curtis Lehr with the larceny of two calves, and an investigation led to his admission of the theft, with the declaration that he was assisted in the commission of the crime by William and Jacob Troup. The first information, naming Lehr alone, was sworn to on December 31, 1928, and resulted in a tentative arrangement with the prosecutor to adjust the matter by the payment of $50, the value of the property stolen, but this settlement was not in fact consummated. A second complaint by the owner of the goods taken, naming the two Troups, bears the same date, but was not actually prepared by the justice until one month later, as a result of an oral direction by Toomey that they be also joined as parties. No attempt was made to arrest any of those implicated at the time, but an order for the apprehension of Jacob, defendant in the case before us, issued on January 30, 1929, and was in the hands of the officers when the murder now in question took place. The court affirmed points presented to the effect that if the warrant directing the arrest of Jacob had been improperly delivered to the constable, those acting thereunder were trespassers, but rightly instructed the jury that this fact would not excuse the homicide charged if the killing was malicious, and the evidence showed the presence of the other elements necessary to a conviction of the first degree: Brooks v. Com., 61 Pa. 352; see also, Com. v. Grether, 204 Pa. 203, 206; Com. v. Miller, 258 Pa. 226.

The jury was justified in finding that the accused knew of the outstanding charge and the consequent danger of arrest. He informed a friend of his intention to leave the state, since the police were after him, stating that he would "blow at" the first officer who tried to seize him. This threat was repeated after his return from Virginia a few weeks thereafter, and, again, on the afternoon of the homicide with which we are at present concerned. The fact that reference was made therein to a class of persons, -- all officers, -- rather than to the individual one actually killed, did not affect their admissibility: Com. v. Page, 265 Pa. 273. The first declaration of this purpose to resist arrest, made nine days before the murder, was to the same effect as that stated on the day of the killing, and, though entitled to less weight, was nevertheless properly received as part of the Commonwealth's case (Henry on Trial Evidence, p. 41), and could not be rejected on the ground of remoteness: Hopkins v. Com., 50 Pa. 9; Com. v. Latampa, 226 Pa. 23. The seventh and eighth assignments, complaining of the admission of this proof, cannot therefore be sustained.

On May 21, 1929, Altland, the constable, having possession of one copy of the warrant, learned that the defendant could be found at his father's home, and determined to make the arrest. Accompanied by two citizens and a policeman, at the time in regular uniform, who also held the office of deputy sheriff, he approached the defendant's lonely retreat between nine and ten in the evening. With one of his assistants he went to the front door, while Sowers, the deceased officer, and the fourth member of the party, took up a position near the rear of the house. When Troup heard Altland knock on the front door, the former signalled his companions in the living room to be silent, reached for a gun standing by the wall, and immediately passed into the adjoining darkened kitchen. He pushed the back door open part way, and fired at the one standing outside. Evidence was offered to show that Sowers, the policeman killed, threatened to shoot before the defendant discharged his gun, but this testimony is contradicted. Bentzel, standing with the murdered man, stated the latter used only these words: "Come on out, its no use your hiding in there," to which Troup replied: "I am not going to shoot." At once he fired through the partly opened door, causing the death of Sowers, and then fled. He surrendered five days later to those in search of him.

Defendant claimed that he intended to escape by the rear, but, on reaching the door, saw something shining, presumably a revolver, heard threats, and then discharged his gun in self-defense. He stated that he feared an attack from enemies of himself or his father, who he believed intended to kill him or inflict serious bodily harm. This...