Kehoe v. Commonwealth

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 comnritted 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, the nature and circumstances of the attack on the deceased, and the atrocious severity of the injuries inflicted on his person, were mainly relied on for the purpose of proving the intent to kill. It was shown that Langdon was “ticket boss” at the colliery, and as such it was his duty to see that the coal, as it came out of the mine, was clean, and if not, to dock the delinquent diggers; that complaints were made of his docking, and about three weeks before he was murdered,- Kehoe threatened to kill him, because he was rob *135 bing him and others there by bis docking. It may be said that Kelioe was somewhat intoxicated at the time, and that bis threats were mere idle bravado, intended to intimidate Langdon. It is true the witness says he was “ in liquor,” but it by no means follows that bo did not mean what he said. When men are under the influence of liquor, they are perhaps more unguarded and outspoken than when duly sober. The testimony tends to show that Langdon had become obnoxious, especially to Kehoe, on account of the manner in which he discharged his duties as “ ticket boss,” and that in making the threats be was actuated by feelings of hatred and revenge. These, however, w'ere matters of fact to be determined by the jury. In endeavoring to discover the motive and intention of the prisoner, they would naturally and properly consider, among other things, the inhuman manner in which Langdon was assaulted and beaten without provocation; the fiendish cruelty with which his assailants persevered in their wicked purpose, even after he had begged them to desist and spare his life. When these and all the attendant circumstances are taken into consideration, in connection with the previous threats to kill him, there was quite sufficient before the jury to warrant the conclusion that they intended to carry the threat into execution. Doct. Dimmiek and other witnesses, who speak of the condition in which Langdon was found, describe his head as “ almost a complete mass of wounds and bruises.” They say, “in fact his whole head was a mass of wounds, more particularly about the posterior part;” one of bis ears was lacerated and almost severed from his head ; his nose and lip were cut through, and some of his teeth knocked out. It was satisfactorily shown that death resulted from the injuries in less than three days ; and if he had not been a man of vigorous constitution he could not have survived so long. If it may be presumed that men intend the natural and ordinary consequences of their acts, it required no strained inference to reach the conclusion that they intended to beat him to death. But the jury had no occasion to rely exclusively on any such presumption. The previous threats and subsequent conduct of the prisoner tended strongly to the same conclusion. When he met the witness, William King, early next morning, he said “ I was up at Pottsville last night, and they killed Langdon.” How came he to use this expression if the idea of killing Langdon had not been previously entertained ? Scattered throughout the testimony there are a number of facts and circumstances which tend to connect the prisoner with the murder, and at the same time justify the jury in determining the degree as they did. It is unnecessary to refer to them in detail or at greater length than has been done. They all appear to be consistent with the theory upon which the verdict, must have been based, and at the same time irreconcilable with any reasonable hypothesis of the prisoner’s innocence. The body of the offence was clearly established. There could be no doubt that *136 Langdon was murdered, and the evidence was amply sufficient to justify the jury in finding that the prisoner was one of the guilty parties, and that the grade of his offence was murder of the first degree. A careful review of the evidence satisfies us that “ all the ingredients necessary to constitute murder of .the first degree were proved to exist.” The supplemental error, assigned at bar during the argument, is, therefore, not sustained.

The first five, together with the eighth and ninth assignments of error, relate to the conduct and declarations of Kehoe immediately prior to the beating of Langdon, and what was said in his presence by others with whom it was alleged he was acting in the pursuit of their common purpose to attack Langdon, and what occurred after he was attacked. As has been already remarked, it was very evident that, in the assault on Langdon, there was what at least appeared to be concerted action on the part of several persons with whom Kehoe was associated; and it would have been impossible for the jury to have had an intelligent understanding of the case without being informed as to the facts and circumstances leading to and connected with the main transaction. Many of the matters embraced in these assignments fall properly under the head of res gestee; and while some of them may have had but little if any bearing on the case, we are unable to see that the prisoner could have been, in any way, unduly prejudiced by any of the testimony to which objection was made. As a general rule, everything that pertains to the< proper surroundings of the crime charged is admissible. We cannot say that the rule was violated in this case. The length of time that has elapsed — nearly fifteen years — -between the commission of the offence and the date of trial, made it more difficult to develop the facts of thet case without the introduction of some unimportant circumstances, the relevancy of which may not have been quite clear. We have been unatile to discover any material error in the matters complained of in either of the foregoing assignments.

The sixth and seventh assignments relate to the alleged dying declarations. The testimony on which they were admitted appears to show, and no doubt satisfied the court, that they were made by the deceased under a sense of impending dissolution. In determining the state of his mind at the time, the nature and character of the injuries, from which he was then suffering, were to be considered in connection with what he said in regard to their fatal effect; and if he really believed that death was impending as the speedy result of those injuries, his declarations were properly admitted. It was a question for the court, and, while in some respects it may be considered a close one, we think it was rightly determined.

The tenth and eleventh assignments relate to the rejection of Columbus McGee and Neal Dougherty as witnesses, offered on the *137 part of the prisoner, on the ground that they with others were indicted jointly with him for the same homicide, and that Dougherty had been tried and convicted, but not sentenced. In the case of McGee the question presented is, whether, when several persons are jointly indicted and separate trials are awarded, one who has not been tried is a competent witness for one of the others on trial.

This wvas one of the questions in Shay v. Commonwealth, 12 Casey 305, in which it was held that he was incompetent. This case vras followed by Staup v. Commonwealth, 24 P. F. Smith 458, in which the present chief justice, delivering the opinion of the court, says : “ Defendants jointly indicted for murder, though severing in their defence, cannot testify for each other. The love of life is too strong to be placed in the balance against truth, and the result might often be that both defendants would be acquitted when both were guilty.” A different rule has sometimes been recognised, but the decided weight of authority accords with our own cases.

The case of the other witness, Neal Dougherty, differs only in this, that he had been tried and convicted, but not sentenced, and motions in arrest of judgment and for a new trial were pending at the time he was offered. Was he thereby rendered competent? We think not. It is clear that when the prosecution, as to one of several defendants, is fully ended, either by acquittal, entry of a nolle prosequi, or by a verdict of guilty and judgment thereon, he is a competent witness, unless disqualified by the judgment, as in case of sentence for crime of an infamous nature. In such cases it is the judgment that renders the convict infamous, and the disqualification continues until it is removed by pardon or otherwise. In Rex v. Fletcher, 1 Strange 633, two persons were jointly indicted, one of whom pleaded guilty and paid his fine; it was held by Lord Chief Justice Raymond, that he was a competent witness, for the other, for the obvious reason that the matter was at an end as to him. He was no longer, in any just sense, a party to the record. Ilis testimony could have no possible effect on his own punishment, for that had been inflicted and satisfied; nor upon any subsequent proceedings against him, for, as to him, all proceedings had terminated. But the case is very different when the prosecution has not been ended; when a verdict of guilty has been rendered, and efforts are being put forth to arrest judgment or secure a new trial. At no period in the progress of the case, perhaps, is the defendant more interested in furnishing exculpatory evidence in behalf of his co-defendants, who, after being liberated by his testimony, would become competent witnesses for him in the event of a new trial. In The State v. Young, 39 N. H. 283, a defendant, who pleaded, nolo contendere, but against whom no judgment had been pronounced, was held to be incompetent, as a witness, for his co-defendant. In delivering the opinion of the court, Mr. Justice Fowler says, “it seems, notwithstanding cases to the contrary, that a defendant can *138 not properly be admitted as a witness for his co-defendant, in a criminal case, until he has ceased to be a party to the proceeding. No plea, merely, unless followed by judgment in accordance with it, can operate to remove the disqualification. So long as he remains a party to the proceeding ; so long as anything remains to be done against him which may, by possibility, be affected by his own testimony, he is incompetent.” In some cases, confusion of thought has apparently arisen from speaking of the conviction of a defendant as the end of the case. When conviction, by judgment of the court, is meant, this is correct; but, when a plea, admitting guilt, or a verdict of guilty, not followed by judgment, is regarded as a conviction which ends the case, it is erroneous.

We are satisfied that both reason and weight of authority concur in the conclusion that neither of the witnesses offered was competent, and therefore no error was committed in rejecting them.

The remaining assignments of error are not sustained, and there' appears to be nothing connected with either of them that requires special notice. The defendant's fourth point was affirmed, with an explanation and qualification, which the circumstances of the case appear to have justified. The fifth point was substantially affirmed, and the suggestions therein contained were properly referred to the jury for their consideration. What was said by the court, in the same connection, relative to its jurisdiction of the case, was correct in itself, and in no way calculated to prejudice the defendant.

The learned president of the Oyer and Terminer appears to have conducted the trial with great care and due regard to the rights of the plaintiff in error; the principles of law involved were fully and clearly explained to the jury, and the testimony was so reviewed and submitted as to leave them entirely free in the discharge of their duties as judges of the facts. Guided in their deliberations by correct and appropriate instructions, and acting under the solemnity of their oaths, they found the defendant guilty of murder of the first degree. The record discloses nothing that would justify us in disturbing the judgment.

The judgment of the Court of Oyer and Terminer is affirmed, and it is ordered that the record be remitted for the purpose of carrying the sentence into execution.