Commonwealth v. Westwood

• Decision Date: 23 November 1936
• Docket Number: 193
• Citation: 188 A. 304,324 Pa. 289
• Parties: Commonwealth v. Westwood, Appellant
• Court: Pennsylvania Supreme Court

188 A. 304

324 Pa. 289

Commonwealth v. Westwood, Appellant

No. 193

Supreme Court of Pennsylvania

November 23, 1936

Argued September 29, 1936

Appeal, No. 193, March T., 1936, by defendant, from judgment of O. & T. Allegheny Co., Oct. T., 1935, No. 43, in case of Commonwealth v. James J. Westwood. Judgment affirmed.

Indictment for murder. Before McNAUGHER, J.

The opinion of the Supreme Court states the facts.

Verdict of guilty of murder in the first degree with recommendation of life imprisonment and judgment and sentence thereon. Defendant appealed.

Errors assigned, among others, were various rulings on evidence.

The judgment is affirmed. The record is remitted to the court below that sentence may be carried out.

William H. Coleman, with him M. Barney Cohen, for appellant.

Chauncey E. Pruger, Assistant District Attorney, with him Andrew T Park, District Attorney, for appellee.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES JJ.

OPINION

MR. JUSTICE MAXEY:

The appellant, James J. Westwood, was charged with the murder of his wife, Martha. After trial he was convicted of first degree murder and sentenced to life imprisonment. This appeal followed.

About 1:45 A.M., ^[*] July 10, 1935, Bertha Westwood, a daughter, aged 19 years, heard shots in her mother's bedroom located on the second floor of the Westwood home. She entered the room and saw blood flowing from her mother's face. The other children, Martha, aged 12, and Jimmy, aged 7, also came in. Bertha notified the police station that somebody had shot her mother, and asked them "to find Daddy." The records of the telephone company show that this call was made at 1:48 A.M. Her father arrived at the house about 3:30 A.M. The deputy coroner testified that three bullets imbedded in the head and body of Mrs. Westwood caused her death. She was thirty-seven years of age.

Early in the evening of July 9, 1935, the defendant took his wife and Martha and Jimmy to a moving picture show, where he left them to go to his office, he being a Justice of the Peace of the Borough of McKees Rocks. About 10 P.M., he, in company with Thomas Drexler and Mrs. Catherine Cole (a married woman) went to Carnegie. They returned to McKees Rocks about midnight. Peggy Moran joined the party at the latter place. Miss Moran became Mrs. Belmas on October 17, 1935. These four persons then proceeded in Drexler's car to Peyton's roadhouse, about six miles from the defendant's home, arriving at 12:15 A.M., July 10th. The defendant claims that he did not leave this roadhouse until he departed with the other members of the party about 2:30 A.M., except for an interval of about fifteen minutes when he went out of the roadhouse into Drexler's parked automobile with Miss Moran. He claimed that he then re-entered the roadhouse. Mrs. Belmas (nee Moran) testified that when they left the car the defendant told her to go in one door of the roadhouse and he would enter by another. She next saw the defendant talking to two men at the bar. Later he told her to hurry up and finish her drink. The following questions and answers appear on the record: "From the time that you [Mrs. Belmas] say this defendant, Westwood, talked to a man at the bar, did you see him again that evening until he came in and told you to finish your drink and leave? A. No. Q. Can you tell us about how long he was absent? A. About half an hour. Q. When they [Westwood and Drexler] came back again what did they say to you? A. Well, Jimmy said, 'Hurry up, drink up, we have to be in Brookline.'" She fixed this time at 2:30 A.M.

A neighbor, named Sophie Sehar, who lived in the third house from Mr. and Mrs. Westwood, said that she awoke on the morning of July 10th, with a baby who was "teething." From a roomer who came in, she learned that it then was "twenty minutes of two." About seven minutes later she heard some shots. She said: "I hear one shot real strong . . . then another shot come and I got up and looked through window. As soon as I go to window, there was third shot come. . . . I hear like steps creep or something, and I look and there was Mr. Westwood. Westwood come out of gate." She was asked, "Whose gate?" She answered, "No. 103, where he was living. . . . He looked up and down and then come first face to me. When he was close to me, I was took my head out of window because I was scared." She added, "When he was real close, I see clear, good, like I see you or anybody else here. . . . There was real light by window." According to her testimony and that of others, good visibility was assured her by near-by electric lights and by moonlight. Mrs. Sehar went to another window and again saw Westwood. She said: "He was walking pretty slow. . . . Then I look with my girl out window. I see him cross Munson Avenue, walk pretty fast, but I don't see him no more. I hear car start." Then she heard Bertha Westwood scream: "My Mother is shot." She said, "Somebody asked her [Miss Westwood] who," and the latter answered: "My father shot my mother. Look in the yard for him." The witness told her husband what had happened. He struck her and "pulled her by the neck" and told her to "shut up. Don't say anything." She subsequently made statements to casual questioners, describing in general terms, but in terms inappropriate to Westwood, the man she saw leaving the Westwood home. One witness testified that on "the morning after" the shooting he heard Mrs. Sehar say to an insurance agent (who was not called as a witness) that the man she saw coming from the Westwood home right after the shooting was "too big to be Jimmy." When asked about this while on the witness stand, Mrs. Sehar said: "So many ask me questions, I was scared." She explained that her husband had threatened her and her daughter if they told that they had seen Westwood at the time and place stated. Mrs. Sehar reported to her parish priest three weeks later that it was Westwood she saw coming out of the gate. She also told her lawyer the same thing about six or seven days after the homicide. As to her later actions on the morning of July 10th, she testified: "I went upstairs. I had prayer book and I write in prayer book if something happens to me so they know who was it. It was Westwood. I says that was Westwood killed his wife." She not only put this in her prayer book, but noted the date. She had known Westwood since 1920. When asked if she was positive in her identification, she replied: "I sure am. I can't make no mistake. I see him like anybody else. I know him close. I know him long."

Her daughter, Anna, aged 18, heard two shots. Her mother called her. Both looked out of the window. Anna testified: "He [Westwood] was right beside the gate from which he is supposed to have come out of the yard, Westwood's yard. . . . He took a quick glance at his home, and then I knew very well it was Mr. Westwood." Later she told certain persons she could not identify the man she had seen leaving the Westwood home that morning, but, like her mother, she attributed such statements to her father's angry orders. As a witness, she positively placed the defendant at the scene of the crime.

Walter Monaghan, assistant county detective, testified that he met the defendant after the homicide. He had previously arranged to go fishing with constable Meisner, and have the defendant come to the house for them. After dressing he looked at his watch and it was 2:26 A.M. "The car was parked [near by]. Westwood and a woman were sitting in the front seat." Another woman was in the rear seat. They drove to the McKees Rocks police station. George Matovich came out and asked the defendant, "Have you been to your home?" The reply was: "No." Matovich said: "You better get down there, you wife's shot." The defendant said: "Come on, Walter." The witness was asked if Westwood asked Matovich anything about the shooting. The answer was, "Just what I stated is what happened." They went to the Westwood home, arriving about 3 A.M. A policeman there informed them that Mrs. Westwood was dead. Westwood then laid down over his wife's feet. The witness said: "Come on, Jimmy. Get up out of there." He helped him up. "There were tears in Westwood's eyes." Monaghan asked him if he knew of any reason for this shooting. The defendant replied, "I have no enemies." He was then asked if his wife had any enemies. He replied: "No, she was a good woman." After talking to Mrs. Sehar early that morning Monaghan again interrogated the defendant about this shooting. The latter said: "I have no reason. I have had no warning." Monaghan testified that William Westwood, defendant's brother, said to defendant at about 4 A.M.: "My God, Jimmy, why did you have to do this?" The latter answered: "I didn't do this. I can prove I was with Walter [Monaghan]." As a matter of fact, the defendant was not "with Walter" until at least forty minutes after the shooting. Monaghan was asked: "Did he [the defendant] do anything? A. He did not." The defendant's brother, William Westwood, corroborated Monaghan as to the accusation he [William] made to defendant and as to the defendant's reply except that the brother said that defendant declared he was "with Walter and Tim [Drexler]."

A neighbor of defendant testified that on the morning of July 10, 1935, the defendant had a bull terrier dog, that when strangers entered the Westwood home, the dog "would bark and leap around," and that when Westwood came home "the dog wouldn't bother at all." Another witness testified that he knew this dog and that the dog would keep barking and growling when strangers came near the house but that when Westwood came into the house, the dog walked up to him and did not make any noise. A woman who lived next door to the Westwoods testified that she came home...