Commonwealth v. Roddy

Criminal law—Murder—Challenge of jury—Opinion of juror. The Supreme Court will not reverse a conviction in a murder case because the trial judge overruled a challenge for cause, where it appears that the challenged juror stated on his voir dire that he had been present as a spectator at a previous trial; that he had heard part of the commonwealth’s evidence, and had read such summaries of the evidence as were published in the local papers, and from that had formed and expressed an opinion against the prisoner, but that his opinion was provisional, and it would not prevent him from rendering a verdict in accordance with the evidence submitted. Criminal law—Murder— Evidence. On the trial of an indictment for murder where the evidence showed that the murdered man had been tied with straps; that the murderers had ridden from the scene of the murder on horses belonging to a tenant of the deceased, and had abandoned the horses several miles from the deceased’s house, on a road leading to the prisoner’s house, it is proper to admit evidence of the tenant that he discovered on the morning after the murder that his barn had been broken open during the night; that a pair of horses, a couple of bridles and a saddle had been taken away, and that the straps with which the deceased had been bound were taken from his fly nets. This testimony was relevant as explanatory of the facts which were before the jury, and as tending to show by what route the murderers fled, and how it was possible for the defendants to have been seen so early next morning where, in the attempt to establish an alibi, their witnesses had placed them, consistently with the theory that they were the murderers, and as showing deliberation, and as a part of the history of the crime. On the trial of an indictment for murder evidence is admissible that, prior to the murder the deceased had in his possession a ten dollar confederate note, and that on the day after the murder the prisoner had in his possession a note similar in appearance, and of the same denomination, which was carefully destroyed by him, in connection with the prisoner’s declaration as to how he came by the note, and why he destroyed it. Criminal law—Murder—Evidence—Eying declarations—Necessity for their admission. The dying- declarations oí a person who has been mortally injured, as to the origin of his injuries and the person at whose hands he has received them, is competent, not merely in a case where the defendant could not otherwise be convicted, but in all casos, no matter how ample the evidence of identification through other sources may be. The dying declarations oí a murdered man as to the identity of the prisoners are properly admitted in evidence where they give in great detail and particularity the maimer in which the deceased was robbed and tortured; the opportunities he had of observing the robbers, so as to enable him to form his belief as to their identity, and conclude as follows: “Iam satisfied that the Roddy boys (the prisoners), brought to my house by the officers, are the same men that robbed and tortured me.” It is no objection to the admission of sueli declarations that at the time they were made a mask was put upon tlie faces of the prisoners so as to leave the same portions of the head and face open for examination as was left of the heads and faces of the robbers on the night of the murder. Charge of court—Stating purport of testimony. The use in the court’s charge of tlie word “claimed” instead of the word “ stated,” in referring to the testimony of certain witnesses who saw two men at a certain place, whom they did not then know, but who, they said at tlie trial, resembled defendants, was not error, where the court was not attempting- to give the purport of their testimony, but only referring the jury to the general class of witnesses to which they, among other witnesses, belonged, and referred the jury to their own recollection of the testimony. Criminal law—Practice—Motion for new trial—Reviews. The refusal of a motion for a new trial is an error in law only where it is apparent that such refusal amounts to a clear abuse of discretion.

Appeal, No. 136, Oct. T., 1897, by-defendants, from judgment of 0. & T. Somerset Co., Dec. T., 1896, No. 2, on verdict of guilty of murder in the first degree. Indictment for murder. Before Longenecker, P. J., of tlie 16tb judicial district, specially presiding. The facts appear by the opinion of the Supreme Court. At the trial tlie commonwealth offered to prove by William J. Horner, tlie witness on the stand, that on the night of the burglary at David Berkey’s, two of witness’s horses were taken out of his stable; that they were led up to David Berkey’s house and tied to the fence; that therewere two bridles and a saddle and a blanket taken; that by reason of a defect in a foot or the gait of one of the horses he was enabled to track it, and did track the horses in the morning after the burglary for a considerable distance from the point where they were tied, in the direction of Johnstown, by wajr of a road from Ashtola to Scalp Level, then turning off that road they were found in a field next day. This to be followed with proof that at the point at which the horses were tied they had been fed oats on the ground; to be followed by further proof that parties resembling the defendants were seen at a cut on the Baltimore and Ohio railroad, a little south of Johnstown, being in the direction of their homes in Morrellville, about 6:30 to 7 o’clock on the morning of June 3; that being a point that would be reached by a short cut across the country from the fields in which the horses were found; that he had in his stable, on the night of June 2, leather fly nets; that on the morning of June 3, he discovered the nets had been taken out of the barn, and the straps removed from them, and the balance of the nets dropped under the overshoot of the barn, and that the straps removed from the nets are the straps already testified to by Caroline Berkey as the straps with which her late husband, David Berkey, was tied on the night that his house was burglarized and he tortured. Counsel for the defendants objected to the foregoing offer for the following reasons: 1. The facts alleged in the offer tend to establish a separate and distinct offense, and therefore are inadmissible in this case. 2. It is not proposed in the offer to prove that the horses, nets and other property designated were at anytime seen in the possession of either of the defendants, and therefore they cannot be affected by the proof offered. 3. The fact, that the straps or portions of fly nets which were used at the-robbery were gotten at the stable of the witness cannot affect, the defendants. It is not corroborative proof tending to show that they were the parties, as it is not alleged that the defendants were in possession of the stable or the nets, and it would therefore add nothing to the evidence on the part of the commonwealth tending to identify the defendants as the perpetrators of the alleged crime. The evidence is irrelevant and immaterial. Tlie Court: The proposed evidence is not, of course, offered for the purpose of establishing a distinct and separate offense, and the mere fact that it discloses a distinct offense does not exclude it. We cannot say at this stage of the case that the proposed proof as to the property mentioned is not material for the purpose of tracing the perpetrators of the crime and connecting the defendants therewith. The evidence is therefore admitted, and exception noted for the defendants. Under this offer the commonwealth proved that two horses were taken from the stable of William J. Horner the night of the robbery, which wore found next day several miles from Berkey’s, along the public road, in the direction of Johnstown; but did not adduce auy evidence whatever connecting either of the defendants with tlie taking of the horses. [2] The commonwealth offered to prove by the witness on the stand that about two weeks before tlie robbery of June 3, and often before that, he had seen, and, with David Berkey, counted the contents of David Berkey’s pocketbook; that the last time he counted it, and frequently for years before, he had seen in the pocketbook a ten dollar Confederate bill; that David Berkey had kept this bill in his pocketbook and frequently exhibited it. This to be followed with proof that on the afternoon of June 3, after the burglary at Berkey’s, James Roddy, one of the defendants, exhibited and destroyed, in Morrellville, a bill of like description. Counsel for the defendants objected to the foregoing offer for the following reasons: 1. The time at which the witness is alleged to have seen a confederate bill and the money in the pocketbook of David Berkey is too remote from the robbery. 2. The offer does not propose to sufficiently identify the Confederate bill for the purpose of making it evidence against the defendant James Roddy in this case. 3. It is not proposed to be shown that the defendants had any knowledge of the money alleged to be in possession of David Berkey at any time prior to the robbery, and they cannot be affected by the knowledge possessed by the witness. 4. The evidence is irrelevant and immaterial. The Court. We overrule the objection, admit the testimony, and note an exception for the defendant. Under this offer the commonwealth proved that about two weeks before tbe robbery, David Berkey had some money in his pocketbook and a ten dollar Confederate bill which he had carried for a number of years, and Frederick Naugle, Jennie Naugle and Mattie Naugle, were called to prove that James Roddy had a bill of like description in his possession on June 8, a few hours after the robbery. [3] The commonwealth offered a paper testified to by Dr. Conrad and Dr. Taylor, marked exhibit “ A,” for identification, as the dying declaration of David Berkey. Counsel for the defendants objected to this paper for the following reasons: 1. The commonwealth has already introduced the testimony of Caroline Berkey, a witness who was present at the time of the alleged robbery and torture of Mr. Berkey, and as dying declarations are only admissible on the ground of necessity, and the commonwealth has shown that no such necessity exists in this case, therefore the alleged dying declarations of David Berkey are not admissible in this case. 2. The declarant states in the paper nothing upon which the identification of the defendants can be based; and the simple statement contained therein, namely, “ I am satisfied that the Roddy boys brought to my house by the officers are the same men that robbed and tortured me,” is not a sufficient identification of the persons on trial. 3. The declarant states his belief that the two Roddy boys are the persons who robbed and tortured him, but does not state the facts upon which he founds such belief, whether on knowledge acquired by him on the evening of the assault and robbery or whether on information furnished him by other persons subsequent thereto. 4. The commonwealth has not laid sufficient ground for the introduction of this paper. 5. The evidence already introduced by the commonwealth shows that the officers who had the prisoners under arrest took them to the house and, in the presence of Mr. Berkey, placed masks on them, and that the officer, at the request of Mr. Berkey, got John Roddy to enter into a conversation in the presence of Mr. Berkey, and did such other acts as they had no right to do, under the law, with prisoners in their charge, and which acts render any identification under such circumstances incompetent in the case. 6. The defendants are prepared to prove that masks were placed over the faces of both men, and they were otherwise made to resemble the parties who committed the assault on Mr. Berkey, at the time tliat Mr. Berkey saw them under arrest; that this treatment was all by officers who had them in charge at the time. The Court: We admit the statement of David Berkey, and note an exception for the defendants. [4] Paper marked exhibit “ A ” was read to the jury, and is as follows : “ Personally appeared before me, a Justice of the Peace in and for aforesaid county, David Berkey, who being duly affirmed according to law, deposes and says in regard to being robbed; ‘ the door of my dwelling-house was bursted open on the night of June the 2d, 1896, and two men came into my bedroom; I asked them what they want in here, and one of them said, “ Money, by God, and we will have it.” Both men had revolvers and said to me, “ Do you see these ? ” I said “Yes.” They told me if I had any prayers to say I was to say them that they would shoot me. T told them to shoot, but they did not. Then they tied me, both hands and feet, and carried me out of bed into a rocking chair and hit me on the mouth, knocking a tooth loose, then they ransacked the safe. I told them my money was in my vest; they got it, it was about one hundred twenty-five dollars in paper and silver. They burnt my feet some before getting any money. They continued to burn my feet demanding more money or Government bonds. They first burnt my feet with paper, afterwards with oil-lamps and tallow candle. They ransacked the house from cellar to attic, then they went to the cellar, brought up pies, cakes and milk and eat and drank, then they left my house; and 1 am satisfied that the two Roddy boys brought to my house by the officers are the same men that robbed and tortured me.’ “ Affirmed and subscribed before me, this 28th day of Sept. A. D. 1896. “ Scott Murphy, J. P. David Bjsrkey.” “ Witness : G. E. Conrad, “ J. Swan Taylor.” The court charged as follows: A year ago this hour the community was shocked at the spreading news of a cruel outrage committed the preceding night on David Berkey at his home in Paint township, in the northern end of this county, by a pair of masked burglars who had forced their way into his house shortly after midnight. It is alleged the injuries he then sustained caused Iris death, which occurred on the 8d of October last. These defendants were suspected of having perpetrated the crime, were arrested, indicted, and are here to answer that charge. The indictment contains two counts, but both relate to the same offense, and charge the defendants with the murder of David Berkey. Some facts connected with the case are free from controversy. 'It is not disputed or questioned that on the night mentioned a burglary was committed at the house of the deceased for the purpose of robbing him. Nor is it denied that he was tortured and that he lingered and died in consequence, as the indictment alleges. The disputed question is whether the defendants are the persons who committed the offense. . . . The testimony shows that after the door was broken open and the parties had entered, they were asked by David Berkey what they wanted and they replied, “ Money, by God, and we will have it,” and that they then ransacked the house and took all the money they could find. To accomplish their purpose and compel the old man to disclose the whereabouts of his money, he was placed in a chair, his hands and feet tied, revolvers presented to his face with threats of violence; he was struck on the face while in this position and his feet burned in the horrible manner described by the physicians and other witnesses; all for the purpose of forcing him to reveal the other money and Government bonds they supposed he had. If this undisputed testimony is believed, the crimes of burglary and robbery were complete. The burden is on the commonwealth to show affirmatively that those injuries caused his death, or, at least, concurrently ■with other causes, contributed to his death. It is the first step necessary to a conviction. So your first inquiry will be whether David Berkey died from the effects of the wounds received at the hands of the two burglars. If this is found in the affirmative, then what is the offense committed by the perpetrators of those acts of cruelty ? The commonwealth says it is murder, and so charges it in the indictment. . . . Did the defendants commit the crime or participate in its commission ? That is the real issue for your determination, and you must decide it from a fair and impartial consideration of all the evidence submitted. . . . Were James and John Roddy at the Berkey home on the night of June 2, 1896 ? Are they the two men who tortured and robbed the deceased? If the evidence satisfies you beyond a reasonable doubt that they are the guilty parties it is your duty to say so by your verdict, regardless of the consequences to them which may follow. . . . We do not propose to review the testimony in detail. It was argued exhaustively and with exceptional ability on both sides during the sessions of the entire day. It is therefore quite familiar to you and fresh in your recollections. But in brief, the theory of the commonwealth is that the defendants, with Richard Jackson, planned this robbery sometime in advance ; that they went out into the vicinity of Berkey’s residence the week preceding, and on the 26th, 27th and 28th of May, passed about the neighborhood, locating their victim and preparing for the commission of the crime, and that their visits of those days were but preliminary steps to the act of June 2. A number of witnesses appeared who testified to seeing three persons in the vicinity on the days mentioned in May, as well as on June 2, and undertook, with more or less certainty, to identify the defendants as two of them, and Jackson as the other, some being more positive in the identification than others. Besides these witnesses yon have also the testimony of Mrs. Berkey, who was in the house when the burglary and robbery took place, and who also undertakes to identify the defendants. Then there is the dying declaration or statement of David Berkey, which was read in your hearing, in which he expresses the belief that the defendants are the guilty parties. [Two witnesses were also called who claimed to have seen the defendants on the morning of June 3, along the B. & O. Railroad, about the Osborne cut, when, it is argued, they were returning to their home. You saw the witnesses on the stand and heard them explain how and why they identified the defendants, and will judge of the value and sufficiency of their testimony for that purpose.] [5] We will only add that this charge must stand or fall, as the identity of the defendants with the persons seen on the road and at Berkey’s when the crime was committed, is proved or fails of proof. The defendants positively deny that they were then, or at any other time before, in Paint township, and deny all knowledge of, or complicity in, the burglary. They say they never knew the deceased and were never at his home until taken there by the officers after their arrest. Even if it should be believed that they were there on May 27, and 28, it would not follow from that fact that they were there also on June 2, and participated in the crime for which they stand indicted. But the evidence as to those two days was offered only as it bears on the nature of their errand and the probability of their return on June 2, and for the purpose of identification. In addition to the positive denial of the defendants they set up what is known in law as an alibi, which means, in plain terms, that when the offense was committed they were elsewhere, and could not, therefore, have done this deed. That defense, when established to the satisfaction of the jury, is as conclusive and complete as any that can possibly be interposed; for a man cannot, in the nature of things, be in two separate places at one and the same time. If on the evening or night of June 2, the defendants were in Morrellville, as they say, it is manifest they could not have been at Berkey’s, and are necessarily innocent of this charge. You heard their explanations of how they spent the day of the 2d, going from their home up to Johnstown and returning in the afternoon about 4 o’clock, of the persons whom they met on the way and in Morrellville during the evening and that night, and of their finally retiring and sleeping at their own home that night. A number of witnesses sustain them in their testimony. George Carpenter and Harry Douglass speak of seeing them about 4 o’clock near the Pennsylvania railroad bridge, going in the direction of Morrellville. Mrs. Roddy, Mrs. Lightner, Morris Roddy, Mr. and Mrs. Arnold, Mrs. Green, Mrs. Overdorff, Mr. and Mrs. Dixon, A. J. Leonard aiid others say they saw them in Morrellville during the evening and night of that day, while Robert Hill says John worked in his mine the next day. If the statements of these witnesses are believed, they would seem to make out a complete alibi. Their credibility, like that of all witnesses in the case, is for the jury. If there are discrepancies in the testimony, it is your duty to reconcile them, if you can, on such theory as will sustain the integrity of all the witnesses who are in conflict. If that cannot be done, you will consider what opportunities the several wit-, nesses had of knowing, fixing, or remembering the dates and the facts to which they testified, and on all the evidence determine who is to be believed. In setting up the defense of an alibi the defendants introduce a separate issue into the case, and assume the burden of making it out to the satisfaction of the jury. Practically all the testimony of the defense is directed to this issue. While it applies to May 27 and 28 as well as June 2, it is sufficient if it completely covers that portion of the night of June 2, during which the crime was committed. For if the defendants were in Morrellville while the crime was being perpetrated, they could not be convicted for being in Paint township or at Berkey’s on the previous days. In determining the alibi, therefore, only such testimony on both sides as relates to the afternoon, evening, and night of June 2, and morning of June 8, should be considered. The value of testimony depends in some instances on the ability of the witness to fix satisfactorily the date in question. Certain witnesses sought to fix dates by associating therewith other events which were known or were fixed by books or papers. But, after all, such proof, by association of one fact with another, depends on the memory of the witness as to whether the fact in issue did, indeed, happen on the same day as the admitted fact. The defendants having testified in their own behalf, the commonwealth put on the stand a number of witnesses to impeach their character for veracity, and they said it was not good. It is proper that we should say such proof does not necessarily throw the testimony of the defendants out of the case. You are still to consider, in the light of that proof, whether they testified truthfully or falsely in the case. It goes to their credibility, and it still remains for you to say how much importance shall be attached to their testimony. You have been repeatedly told that no conviction can be had if, on consideration of all the evidence, including that relating to the alibi, there is a reasonable doubt of the guilt of the defendants ; and such is the law. The presumption of innocence must prevail unless the evidence removes every fair and reasonable doubt of guilt. It must not, of course, be a mere captious doubt, but such as your judgment throws into the solution of the question; a doubt which springs from the evidence submitted, or the lack of evidence; a doubt which touches your conscience and which your reason respects, which, after a fair and candid effort to resolve it and clear it up by the other evidence submitted, continues to cloud your judgment. Verdict of guilty of murder of the first degree, upon which defendants were sentenced. Errors assigned were (1) overruling challenge for cause of juror, E. B. Maurer, as stated in opinion of Supreme Court; (2-4) rulings on evidence, quoting the bill of exceptions; (5) portion of charge as above, quoting it; (6) in not adequately presenting the evidence on the part of the defendants; (7) in overruling motion for a new trial.