Commonwealth v Lacey et al.

Criminal Law--Homicide-Testimony-Lesser Degree of Crime-New

Trial-Verdict-Record.

Where in a homicide case the defendants committed an act which under the law constituted murder of the second degree, it is not ground for a new trial that the jury found the defendants guilty of the lesser offense of voluntary manslaughter.

In such a case it is not error for the court to refuse to strike out testimony offered by the Commonwealth which standing alone would not be sufficient to take the case to the jury, but which fits in with the other testimony offered by the Commonwealth and strengthens the Commonwealth's case in chief.

Nor is it error in such a case for the court to admit testimony offered by the Commonwealth in rebuttal and afterwards refuse to strike it out, when such testimony is not for the purpose, as contended by defendants' counsel, of proving an additional offense to that charged in the indictment against the defendants, but in contradiction of testimony given by the defendants.

A new trial will not be granted defendants upon mere allegations assigned in support of a motion for a new trial that the record does not show the verdict as returned by the jury, and that the same was not rendered in full, that the jury in its verdict recommended the most extreme mercy of the court and that the lightest punishment possible under the law be imposed upon the defendants, and that the record does not show the verdict of the jury, when no legal proof of such allegations has been offered, and the trial judge knows officially, from having heard the verdict rendered orally in court, that the record shows the verdict exactly as it was returned by the jury.

Motion of Defendants for a New Trial. No. 4 September Term, 1920. O. and T. Fayette Co.

William A. Miller, district attorney, for commonwealth.
George Patterson and John Duggan, Jr., for defendants.

VAN SWEARINGEN, P. J., December 6, 1920.-The defendants, Earnest Lacey and John D. Yates, were convicted of voluntary manslaughter for the killing of Milton Ford, a colored boy eleven years of age, on August 23, 1920, and the case is before us now on a motion of the defendants for a new trial. The deceased and four companions of near the same age, all colored, had been picking elderberries in a berry patch near the Atlas coke works, in North Union township, Fayette County. After filling their buckets with berries the boys started on the way to their homes in the east end of Uniontown, using a path through a hay field, from which the hay had been cut and removed, and which then was being used as a pasture field. The Ford boy was considerably in advance of the other boys on his way home, the others having stopped to rest on the way or to shell their berries, and as the Ford boy was proceeding along the path, carrying an aluminum bucket filled with berries on his shoulder he was shot through the head, falling in the path and dying almost instantly. The bullet that passed through the boy's head also passed through both sides of the bucket which he carried on his shoulder.

Coming from the berry patch toward Uniontown the route taken by the boys on their way home runs up over the top of a hill, where the path enters the hay field or pasture field at a pair of bars. From that point the elevation of the field is downward to rather a deep gully or ravine, from which the elevation is ascending to the other side of the field. Immediately to the right of the bars where the path enters the field, and ending thereat, is a narrow thicket extending along beside the field for some distance. Sixty-two yards to the left of the bars is a fallen tree. From one side of the field to the other the entire field is in plain view, except in the depth of the ravine, which crosses the path practically at right angles about two-thirds of the way from the bars to the other side of the field.

An alleged eye witness to the killing of the Ford boy, John Jones, a colored

Commonwealth v Lacey et al.

man, testified that he was coming home from his work on the afternoon the boy was killed, traveling the route traveled by the boys, and that when he came to the bars into the field the Ford, boy was down about the ravine ahead of him, and that as he was getting through the bars the two defendants, each with a rifle, came around from the thicket, climbing through the wire fence at that point. The witness testified that he went into the thicket about sixty feet down from the bars to attend to a call of nature, and had been in the thicket three or four minutes when he heard somebody talking, and that upon coming to the edge of the thicket and looking out he saw the two defendants sitting on the old fallen tree to the left of the bars. He said the Ford boy then was going up the path beyond the ravine, and that the defendants threw up their guns, and, pointing them in the direction of the Ford boy, both fired. The witness said the Ford boy turned and looked back, and that the defendants both fired again, and that the boy fell, at the point where he died soon thereafter. The witness said his eyes were on the men when they fired, and that he did not actually see the boy in the act of falling, but that he heard the bucket which the boy was carrying on his shoulder fall to the ground in the path, and that when he looked the boy was down. He said the defendants then walked away rapidly in the direction of the Gulf Refining Company's plant, which is on the National Pike, looking back, after which the witness went to a nearby house and summoned Alderman John Darby by telephone. Jones said he did not know the defendants prior to the shooting, but that he recognized them by their faces in court, and that they were the men he saw do the shooting. It was shown by other evidence that the distance from the fallen tree to the point where the Ford boy fell in the path was nine hundred and three feet.

Alderman Darby testified that immediately after receiving the telephone message he started out the National Pike eastward from Uniontown, in an automobile, and that when he was about five hundred yards out of the city limits, and half a mile from where the alleged shooting occurred, he met the defendants with their guns coming along the Pike toward the city. The alderman said he stopped and jerked the guns from the defendants and placed the defendants under arrest and put them into the automobile and brought them to jail. He said one of the defendants asked him when he arrested them what the trouble was and that he told them they had shot a boy, to which they replied that they had just purchased the rifles that day and had been out with them for target practice, and that each of the defendants said to the other he was sorry they had bought the guns. Alderman Darby said the defendants acted as though they were intoxicated, bumping into each other, holding to each other, half crying. He said that upon going to the hay field or pasture field two or three days later he found bullet holes in some trees and a number of empty cartridges and the weeds tramped down where somebody evidently had been shooting at targets.

In connection with the commonwealth's identification of the defendants as the man who did the shooting, there was the testimony of Edna Dice, a daughter of A. W. Dice, who conducts a gun store in Uniontown, who said she had worked in her father's store for a number of years, and that at about one o'clock on the day of the shooting the two defendants came into the store and asked to see rifles, and that she sold to Lacey a 250-3000 Savage high power rifle, and to Yates a 30 calibre Remington rifle of high power, together with cartridges and targets, and that the defendants then told her they were going to the east end of town to try out the guns.

The defendants on the witness stand admitted having purchased the rifles offered in evidence from Miss Dice on the day and at about the time she said they did, but they denied shooting the Ford boy. They said that after leaving the Dice store they passed through the streets of Uniontown and out Park

Commonwealth v Lacey et al.

Avenue to the hay field or pasture field already mentioned to try out their guns, and did try them out at a number of points about the field and thicket, shooting until their cartridges were exhausted, and that they then climbed through the wire fence near the bars and went on over the brow of the hill toward the Atlas works and then turned to the south and went around the hill to the National Pike and started toward Uniontown, soon after which they were arrested by Alderman Darby and taken to jail. Both the defendants testified that they were not at the fallen tree where the witness Jones testified he saw them, and that they did not see the fallen tree, and that they did not shoot the Ford boy, and did not see him.

Other witnesses testified on the part of the Commonwealth, and still others on the part of the defendants. There was evidence that after the Ford boy was killed the witness, Jones, made statements as to what he saw differing materially from his testimony at the trial in court, and there was evidence of the good reputation of the defendants for peace and good order prior to this trouble. We have recited the testimony in the case at some length in order that our discussion of the reasons assigned in support of the motion for a new trial might be shortened.

The first four reasons assigned in support of the motion for a new trial allege that the verdict of the jury was against the law, against the evidence, and against the charge of the court, and that "the crime of voluntary manslaughter was not submitted to the jury and such a verdict was not warranted by the evidence." It is true there was no evidence in the case warranting the verdict of voluntary manslaughter. The district attorney did not ask for a verdict of murder of the first degree, but he did insist upon a verdict of murder of the second degree, the belief being that the defendants fired recklessly at the bucket on the Ford boy's shoulder as a target, without considering or reflecting upon the danger to the boy from such shooting. We did not instruct the jury on the law of voluntary manslaughter, because there was no evidence of such an offense having been committed. In our charge to the jury, of which no complaint is made, we instructed the jury as to the different degrees of murder and on the law of malice and reasonable doubt and concerted action, and told them that if they were satisfied beyond a reasonable doubt, that the defendants, or either of them, killed the Ford boy, in the manner alleged by the Commonwealth, as testified to particularly by the witness, John Jones, that the killing was done with legal malice, that is, through wickedness of disposition, hardness of heart, cruelty, recklessness of consequence, and with mind regardless of social duty, although without any specific intent to take the life of the deceased, then they should return a verdict that the defendants were guilty of murder of the second degree, but that if they were not satisfied, beyond a reasonable doubt, that the defendants, or either of them, fired the shot that killed the Ford boy, then they should return a verdict that the defendants were not guilty. The verdict of the jury necessarily embraced a finding by them that one or the other of the defendants fired the shot that killed the deceased, and, therefore, the verdict ought to have been that the defendants were guilty of murder of the second degree. But while that is true, we are of opinion that, inasmuch as the defendants committed an act which under the law constituted murder of the second degree, it is not ground for a new trial that the jury found the defendants guilty of the lesser offense of voluntary manslaughter.

The fifth reason assigned in support of the motion for a new trial is that the court erred in not striking out the testimony of the Commonwealth's witnesses, Carl Cope, Joe Cope and Evaline King. Early in the Commonwealth's case in chief the district attorney called Carl Cope, and

Commonwealth v Lacey et al.

his brother, Joe Cope, white boys, who testified that they were in the berry patch the day the Ford boy was killed, but went home earlier than did the colored boys, traveling the same route afterwards traveled by the Ford boy and his companions, one of them saying it was about two o'clock when they reached their home, and that as they went along the path through the field they passed two men, each with a gun shooting at a tree, but that they did not know the men and were unable to identify the defendants as being the same men. The district attorney called Evaline King, a colored woman living near the field through which the path runs, who testified that she saw the Ford boy going along the path that day on his way home; that she had heard shooting before she saw him and also afterwards, but that she did not see the boy killed, he having passed out of her sight before that time, although she said she saw him dead about half an hour later. She said the first shots she heard were along about one o'clock in the afternoon and that the others were at about three o'clock. She said one of the latter bullets whistled through her yard and frightened her, and that she saw two men shooting near the thicket beside the field, first from near one part of the thicket and later from another part of it. Counsel for defendants moved to strike out the testimony of these witnesses on the ground that the testimony did not identify the defendants as the men who did the shooting, which motion we overruled. Standing alone this testimony would not have been sufficient to take the case to the jury, but when taken in connection with the other evidence offered by the Commonwealth to the effect that the defendants that day had purchased the rifles from Miss Dice, and had told her they were going to the east end of town to try them out, followed by the testimony of the witness Jones as to where he said he saw the defendants and what he said he saw them do, and the testimony of Alderman Darby as to where and under what circumstances he arrested the defendants, their conduct and what they said to him at that time, and his finding of the bullet holes in the trees and the empty cartridges and the physical conditions existing when he later examined the premises near where the boy was killed, we think the testimony was competent, as fitting in with the other testimony and strengthening the Commonwealth's case in chief, and we are of opinion that we were not in error in refusing to strike out the testimony, and, consequently, that our refusal to strike it out does not constitute any sufficient reason for granting a new trial.

In support of the motion for a new trial counsel for defendants assigned as their sixth reason that the court erred in admitting the testimony of David Sheridan, and also in refusing to strike it out on motion of defendants' counsel after it was admitted. David Sheridan, a colored boy, was called by the district attorney in the Commonwealth's case in rebuttal, and testified that he met the defendants with rifles on Park avenue the day of the trouble as they were going in the direction of the hay field, and that when he was a yard or two away from them they stopped and one of them pointed his gun at him and said if he would pull the trigger they would see where a nigger goes. This testimony was not offered for the purpose of proving an additional offense to that charged in the indictment against the defendants, as contended by defendants' counsel, but was in contradiction of testimony by the defendants in their recital of their travels and conduct that afternoon that they did not see anybody from the time they left the outskirts of Uniontown until they saw Alderman Darby, at the time they were arrested, and their testimony on cross-examination that they did not remember meeting a colored boy, and if they did meet him neither of them pointed a gun at him, on Park Avenue, after leaving Shady Lane, which is in the City of Uniontown, and before they reached

Commonwealth v Lacey et al.

the hay field. We are of opinion that the testimony of Sheridan was competent for purposes of contradiction, and that we were not in error in admitting it or in afterwards refusing to strike it out, and that our rulings in those matters constitute no sufficient ground for a new trial.

The last three reasons assigned by counsel in support of the motion for a new trial are: "The record does not show the verdict as returned by the jury, and the same was not rendered in full. The jury, in its verdict, recommended the most extreme mercy of the court and that the lightest punishment possible under the law be imposed upon the defendants. The record does not show the verdict of the jury." We cannot know all that the jurors had in mind at the time they returned their verdict, or whether they embraced in their verdict all that they intended to embrace therein or not. All that we have to guide us is what we heard the foreman of the jury say in returning the oral verdict, and the record that was made of it at the time. What took place when the jury had agreed and were in court ready to render their verdict, is shown by the official stenographer's notes, taken at the time, to have been as follows:

By the Clerk: Gentlemen of the jury, have you agreed upon a verdict?

By the Foreman: We have.

By the Clerk: In the issue joined between the Commonwealth of Pennsylvania and Earnest Lacey and John D. Yates, the prisoners at the bar, how say you, are the defendants guilty of the murder and felony whereof they stand indicted or not guilty?

By the Foreman: Guilty.

By the Clerk: Guilty of what?

By the Foreman: Manslaughter.

By the Clerk: Guilty of manslaughter?

By the Foreman: Guilty of voluntary manslaughter.

By the Clerk: And so say you all.

There was no dissenting voice from among the jurors. The foreman had ample opportunity to add anything to the verdict as already rendered if anything else was to be included in the verdict, but he said nothing further. The minute book of the court contains the entry, made at the time, that the jury returned a verdict that "the defendants Earnest Lacey and John D. Yates are guilty of voluntary manslaughter." The oyer and terminer docket shows that the jury returned a verdict that the defendants "are guilty of voluntary manslaughter." We know officially that all of these records are correct. The record shows the verdict just as it was returned by the jury. The jury did not, in its verdict, recommend "the most extreme mercy of the court and that the lightest punishment possible under the law be imposed upon the defendants," or that the court show the defendants any leniency or mercy whatever. There is nothing before the court leading us to believe that the verdict was not rendered in full just as it was agreed upon by the jurors in the jury room. Some assertion to that effect was made at the argument, but no legal proof of it has been brought to the attention of the court. Nothing appears in connection with these allegations constituting any legal ground for a new trial.

And now, December 6, 1920, for the reason stated in the opinion herewith filed, the motion for a new trial is overruled and dismissed and a new trial is refused.