Commonwealth v. Troy

• Decision Date: 08 May 1922
• Docket Number: 85
• Citation: 274 Pa. 265,118 A. 252
• Parties: Commonwealth v. Troy, Appellant
• Court: Pennsylvania Supreme Court

118 A. 252

274 Pa. 265

Commonwealth v. Troy, Appellant

No. 85

Supreme Court of Pennsylvania

May 8, 1922

Argued April 10, 1922

Appeal, No. 85, Oct. T., 1922, by defendant, from judgment of O. & T., Allegheny Co., April T., 1921, No. 33, on verdict of murder of the first degree, in case of Commonwealth v. Walter Troy. Affirmed.

Indictment for murder. Before SWEARINGEN, J.

The opinion of the Supreme Court states the facts.

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

Errors assigned were various rulings and instructions appearing by the opinion of the Supreme Court, quoting record.

The record is remitted to the court below for the purpose of execution.

A. M Oliver, for appellant, cited: Com. v. Capero, 35 Pa.Super. 392; Pannell v. Com., 86 Pa. 260; Fawcett v. Fawcett, 95 Pa. 376; Com. v Molten, 230 Pa. 399; Com. v. Ross, 266 Pa. 580.

Harry A. Estep, Assistant District Attorney, with him H. H. Rowand, District Attorney, for appellee, cited: Com. v. Colandro, 231 Pa. 343; Com. v. Palmer, 222 Pa. 299.

Before MOSCHZISKER, C.J., FRAZER, SIMPSON, KEPHART and SCHAFFER, JJ.

OPINION

MR. JUSTICE SCHAFFER:

Appellant is under sentence of death for the murder of his wife.

The circumstances of the killing are not in dispute. Defendant, his wife, four children and mother lived in a two-room house, one room down, and the other, upstairs. The mother slept on the first and the others on the second floor. Defendant, who had been drinking on the day of the crime, returned to his house early in the evening, took a revolver from the drawer of a chiffonier on the second floor and left the house, saying he intended to see some men about securing work and was taking the weapon with him for protection. He returned to the house later and had a conversation with his mother on the subject of his wife having paid life insurance premiums, for which purpose he had provided her with money. He did not remain in the house on this occasion, but later, about ten o'clock, returned, got something to eat, talked in an intelligent way for ten or fifteen minutes to his mother, who was in bed in the downstairs room; he there partially undressed, picked up the revolver which he had laid on a table and went up stairs to the room in which his wife and children were sleeping. His mother testified that shortly after he reached this room, she heard him say: "I have a notion to kill you, you consumptive [using a vile term]," and his wife exclaimed, "Oh, Walter!" The witness further said: "I heard two shots." One of the shots apparently killed his wife instantaneously. Immediately after the shooting, defendant threw the revolver upon the floor and kicked it under a bed. He then descended to the first floor and went to a house in the neighborhood, where he saw his brother-in-law and his wife, defendant's sister, to whom he said he had been fooling with a gun and it accidentally went off and shot his wife, and asked them to go over and see what they could do for her. While he was talking to these two persons, his nine-year-old son entered the house. Taking him aside, the father told him to say that he (the boy) had shot his mother. This conversation was overheard by the brother-in-law, sister and one of their children.

The boy, called as a witness by the Commonwealth, testified to the statement above mentioned made by his father to him, and that his father told him if he did not say that he (the boy) had killed his mother, he would be whipped. In pursuance of this instruction and threat from his father, the boy did tell the police he had done the shooting, but later retracted this statement. Carrying out the subterfuge, the defendant stated to the police the day after the shooting that his son had accidentally shot his mother. The boy testified he was awakened by the shot, saw his mother had been killed and witnessed his father throw the revolver on the floor and kick it under the bed and run down stairs.

The defense was intoxication. While it was not disputed by the Commonwealth that the defendant had been drinking, the degree of his intoxication depended largely on defendant's own testimony. The court affirmed a point on this branch of the case presented by defendant by which the jury was instructed that if they believed the accused "was under the influence of liquor to such an extent that he was incapable of forming an intention, the jury cannot find the defendant guilty of murder higher than second degree." While some of the witnesses characterized the condition of the defendant as being "crazy" drunk, those best qualified to speak of his condition immediately before and immediately after the killing, showed that he had a clear and understanding mind. His conversation with his mother just before the shooting was intelligent and sensible. She testified that there was nothing strange about him that attracted her attention and that he impressed her as knowing what he was saying. The brother-in-law, who saw him immediately after the crime, said he smelled liquor on him but that he did not act like a drunken man; that while his demeanor was nervous and excited, he did not think it was because of drink, but on account of fear. In a statement made to the police officers the day following the killing, in which the defendant implicated his son in the shooting, he told a lucid and connected story of his movements during the evening, his return to the house, his undressing before going upstairs and only claimed to have had five or six drinks of whiskey during the day and said that he was not drunk. Called as a witness in his own behalf on the trial, he said he did not know what he was doing at the time of the killing, and only realized what had happened, after the shooting, when he saw his wife lying dead in her bed. His explanation of his conflicting stories was that he...