Kehoe v. Commonwealth

• Decision Date: 07 January 1878
• Citation: 85 Pa. 127
• Parties: Kehoe <I>versus</I> The Commonwealth.
• Court: Pennsylvania Supreme Court

Page 127

85 Pa. 127

Kehoe versus The Commonwealth.

Supreme Court of Pennsylvania.

October 1, 1877.

January 7, 1878.

October 1st 1877.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and STERRETT, JJ.

Error to the Court of Oyer and Terminer of Schuylkill county: Of July Term 1877, No. 29. Certified from the Eastern District.

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A. Campbell, S. A. Garrett and John W. Ryan, for plaintiff in error.—It is not denied that when a party has committed a crime, preparations looking towards it, opportunities sought to accomplish it, may be given in evidence to strengthen the probabilities of his guilt; but the circumstances offered in evidence must be such as to impress a reasonable mind with conviction that they are the proper surroundings of the crime charged. A reasonable doubt about the bearing of any fact in a case of this character requires the rejection of the offer. The court here permitted detached circumstances in evidence to be shown, having no probable or apparent connection with the offence charged, for the purpose of procuring a verdict of murder in the first degree, where there had been two verdicts of murder in the second degree against parties charged with participation in the same crime.

Dying declarations are not admissible, unless it appears that they were made under a sense of impending dissolution and a consciousness of the awful occasion. Langdon was beaten about a mile from his home, and on the following morning left the hotel, on foot, without company or assistance, and walked to his own dwelling. About midway there he met Canvin, who walked with him to within two hundred feet of the house, when Langdon asked him to proceed no further, lest his wife might think he was injured worse than he was. Two days afterwards Langdon died. It was while on the way to the house that the declarations were made. Were they dying declarations?

It is the judgment of the court, and not merely conviction, which disqualifies a witness. Nor is it a valid objection that the witness is a party to the record, if not otherwise interested in the case. A party defendant may be called by the prosecution, if willing to testify, and give evidence against himself and co-defendants. In England this is well settled doctrine: Worrell v. Jones, 7 Bing. 395; Mant v. Mainwaring, 8 Taunt. 139; Pipe v. Steele, 2 Q. B. N. S. 733; Whitehead v. Bank of Pittsburgh, 2 W. & S. 172; Mevey v. Matthews, 9 Barr 112; Paine v. Tilden, 20 Vermont 654; Moddewell v. Keever, 8 W. & S. 65; Johnson v. Blackman, 11 Conn. 342; Woodruff v. Westcott, 12 Id. 134; Bowen et al. v. Burk et ux., 1 Harris 146; Kennedy v. Philipy, Id. 408. It is not, therefore, sufficient ground for the exclusion of a witness that he is a party to the record.

It is the general doctrine that where the suit is ended as to one of several defendants, and he has no direct interest in its event as to the others, he is a competent witness, and may be called as a witness on either side of the controversy: 1 Greenlf. on Ev. 470, 473; Van Deusen v. Van Slyck, 15 Johns. 223; Moon v. Eldred, 3 Hill 104; Wildwarth v. Mountford, 4 W. C. C. R. 79.

So in criminal prosecutions, one of several persons jointly indicted may be rendered competent to give evidence, either for the prosecution or for defendants, as if one plead guilty, he is a competent witness, before sentence, on the trial of the others: Rex v. Henks, 2 C. & K. 462; Rex v. Fletcher, 1 Stra. 633; Rex v. George, C. & M. 111; Commonwealth v. Smith, 12 Metc. 238; Commonwealth v. Marsh, 10 Pick. 57; People v. Bill, 10 Johns. 95; Regina v. Hinks, 1 Denison 84; People v. Donnelly, 2 Parker 182; Shay v. Commonwealth, 12 Casey 305.

It was contended also that the weight of the evidence did not sustain a verdict of murder in the first degree, and its careful scrutiny was therefore invoked by the prisoner's counsel.

As no assignment was made to this effect, the chief justice suggested that such an assignment should be made, and in pursuance thereof it was done, and the contention of counsel thereon was that there was no evidence to show a deliberate intent to take life, and nothing in the weapons used to indicate such intent.

George R. Kaercher (District Attorney), Guy E. Farquhar, Charles Albright and F. W. Hughes, for the Commonwealth.— The acts and declarations were those of Kehoe immediately prior to the beating of Langdon, as well as those of parties concerned with him in the murder. They were made, as alleged by the Commonwealth, by those parties while in pursuit of their purpose to kill Langdon, and were relevant and material.

The nature and character of the injuries inflicted are to be considered, in connection with the declarations of the party, in determining the state of his mind at the time the declarations were made. Death may not ensue for a long time afterwards, still the declarations made under the belief that death is impending as the result of the injuries received, will render the evidence admissible.

The admissibility of such testimony is a question of fact for the determination of the court under all the evidence before it. The judgment of the court upon the facts is not to be reversed unless it plainly appear that error has been committed: Fife et al. v. Commonwealth, 5 Casey 437; Phillips on Evidence, vol. 1, pp. 3, 5 and 7; McCorkle v. Binns, 5 Binn. 340; Hemphill v. McClimans, 12 Harris 370.

It was decided in Shay v. Commonwealth, 12 Casey 305, that an untried joint defendant cannot be a witness. See also Staup v. Commonwealth, 24 P. F. Smith 462.

It is claimed by the plaintiff in error, that while it is a general rule that a party to an action cannot be a witness, yet that by the conviction of a party, he ceases to be a party to the record and may be a witness. That though the conviction may be of an infamous crime, yet until sentence be pronounced he is not disqualified on the ground of infamy. This, if true, would place a party convicted of an infamous crime in the position of being a competent witness, while his unconvicted and presumably innocent co-defendant, under the ruling in Shay v. The Commonwealth, would be incompetent as a witness.

The authorities cited by the counsel, only go to the extent of establishing that a co-defendant may in certain cases be a witness, where upon a conviction, the case as to him is at an end, as where he has endured the punishment, or paid the fine, &c. The case must, as to the party, be at an end. Now with a motion in arrest of judgment, and for a new trial pending, the case of Dougherty was not at an end, as to him. At no period in the case, was it more the interest of Dougherty, than when struggling to reverse the verdict against himself, to furnish exculpatory testimony in behalf of his co-defendants, who, being freed by his testimony, would become competent witnesses for him, in the event of his being granted a new trial: Greenl. on Ev., vol. 1, sect. 363; The State v. Young, 39 N. H. 283; Kirk v. Ewing, 2 Barr 455; Given v. Albert, 5 W. & S. 333; Commonwealth v. Lewis 10 Pick. 57; Wolf v. Finks, 1 Barr 439; Cambria Iron Co. v. Tomb, 12 Wright 394; Parke v. Bird, 3 Barr 360; Irwin v. Shumaker, 4 Id. 177; Lies v. Stub, 6 Watts 48; Stub v. Leis, 7 Id. 43; Marshall v. Bank, 1 Casey 386; Noble's Adm'rs v. Laley, 14 Wright 284; Swanzey v. Parker, 14 Id. 454.

It was argued also that the evidence sustained the verdict, and that the intent to kill was manifest in the threats made. In response to a query from the court as to whether then it was not necessary to show that the party who made the threats did the killing, counsel contended that there was no evidence to show what was the mortal wound, and that Kehoe was present when the concerted effort was made and the numerous and repeated blows given. The court again suggested that there may have been malice and an intent to beat severely, but was there evidence of an intent to take life and counsel argued that whether the intent was to kill or beat was a question for the jury, and they had found that it was the former.

Mr. Justice STERRETT delivered the opinion of the court, January 7th 1878.

The plaintiff in error was indicted jointly with five others for the murder of Frank W. S. Langdon, charged to have been committed at Audenried, on the 14th of June 1862. The defendants each demanded a separate trial, which was granted. The assignments of error relate exclusively to the trial of John Kehoe, and we are not called upon to consider the legal status of any of the other defendants, except in so far as it may have affected their competency as witnesses, or otherwise have a legitimate bearing on the present case.

The testimony before the jury was of such a character as to leave no reasonable doubt on their minds that an atrocious murder was committed upon the person of Langdon, and it was equally clear that several persons were concerned in its commission. A great deal of testimony, direct as well as circumstantial, was introduced for the purpose of showing that John Kehoe participated in the homicide, and it thus became a question of fact exclusively for the jury. By their verdict, the felony charged in the indictment, as well as his guilty participation therein, has been conclusively established. It is very clear to our minds that the testimony was quite sufficient to warrant a verdict of guilty; but it is claimed that it did not justify the jury in finding the higher grade of murder. This would be so if there was no testimony from which the jury might fairly and reasonably find that the killing was wilful, deliberate and premeditated, as well as malicious and without justification or excuse.

When the essential ingredients of murder at common law, or murder of the second degree, under our code, were shown to exist, the burthen of raising the grade to murder of the first degree devolved on the Commonwealth. The previous threats of the prisoner,...