Brandt v. Commonwealth

Mr. Justice Sterrett

delivered the opinion of the court,

The indictment in this case is accurately drawn in the short form authorized by the Criminal Procedure Act. It charges the plaintiffs in error and four others, as principals, with the murder of Joseph Raber, alleged to have been committed on the seventh day of December 1878.

The right which each of the accused had to demand a separate trial was waived; they elected to be tried together and were all convicted of murder of the first degree. A new trial was granted to George Zechman; sentence was suspended as to Henry Weise, and judgment was pronounced against the other four — Charles Drews, Frank Stichler, Israel Brandt and Josiah Hummel. The writ of error was taken by the two last named.

The testimony of the Commonwealth, if believed, tended to prove that Raber was deliberately murdered by two of the prisoners, in furtherance of a nefarious speculation in human life, in which at least some if not all of the others were involved. It was not alleged that they were all present and actually participated in the killing, but it was claimed that while Drews and Stichler actually committed the murder the others were accessories thereto before the fact; that they had procured policies of insurance on the life of Raber, and then hired the others to kill him in order that they might realize the insurance money. If the jury believed, as they doubtless did, the testimony of the principal witnesses for the Commonwealth, they could entertain no doubt as to the guilt of Drews and Stichler, or the motive by which they were actuated. The testimony of one witness was to the effect that, about two weeks before the murder, Drews proposed to give him $100 if he would assist in drowning Raber in Kitzmiller’s dam, and explained to him that it could be accomplished by inviting Raber to go fishing with them in a flat, and then throw him out and run the flat over him. Another testified in substance that Drews said he was to receive $1500 for killing Raber, and asked him to assist; that, on the evening that Raber was drowned, he saw him in company with Stichler and Drews leaving the house of the latter and going through the field to the creek near by; that when Raber reached the middle of the plank across the creek, Stichler, who was ahead, turned around, put his hands on Raber’s shoulders, tripped him and threw him into the water; and in a short time they returned without Raber; that both of them afterwards spoke of the difficulty they had in holding the old man down and drowning him. Such statements as these appear almost incredible, but the testimony of the two witnesses, to a portion of which only I have thus briefly adverted, was by no means all the evidence on which the Commonwealth relied. There was an abundance of other testimony, both direct and circumstantial, tending to establish beyond doubt the guilt of Drews and Stichler, and to prove that they were incited by others to the commission of the felony.

But, it is contended by the plaintiffs in error that testimony prejudicial to them was improperly admitted.

The first assignment of error relates to part of the testimony of Lena Peters, a daughter of Charles Drews. Having testified that her father had stated in her presence and hearing that he was to be paid $1500 for drowning Raber, she was asked to state from whom he said he was to receive the money. While the learned judge refused to admit the testimony, as tending to prove a conspiracy, he considered it competent and relevant as to Drews, and in view of the testimony then before the jury, he thought it might be competent as to some if not all of the others. Mrs. Peters had already testified that Weise, one of the prisoners, had said her “ father should hurry up the drowning of Raber before Friday or Saturday; that Zechman said ,he couldn’t keep up his policies any longer.” She had also testified that Hummel, in the course of a conversation with her father in regard to Raber, Fad said, “ that as soon as father had the money he should go away from the neighborhood or else the people might find it out;” that her father then said to Hummel that he should be careful what he said to the péople about it, and Hummel replied, “yes, nobody would get anything out of him.” The testimony already referred to, as to how and by whom Raber had been drowned, was also then before the jury. It was undoubtedly competent for the Commonwealth to introduce any testimony that tended to prove the guilt of either of the parties on trial. Having elected to be tried together, the accused had subjected themselves to the necessary incidents of a joint trial, one of which was the admission of competent testimony against one of them which might incidentally prejudice the others. They had no right to insist on the rejection of such testimony on that ground: Fife et al. v. Commonwealth, 5 Casey 429. On several occasions during the trial the learned judge took the precaution of saying, that declarations of some of the prisoners were not to be regarded as evidence against others, whose names were incidentally mentioned, unless their participation in the crime was shown by other competent evidence. It has been specially urged as an objection to the admission of Mrs. Peters’s testimony, that the alleged declaration of her father was made after the death of Raber. So far as Drews himself was concerned, it could make little difference whether it was before or after; but, from her answer to the question immediately preceding the offer under consideration, it would appear that it was before Raber’s death. Having testified to hearing her father say he was to get $1500, she was asked how long this was before the drowning and she replied, “ It might have been a week or two before.” Speaking of the same matter in another portion of her testimony the impression is conveyed that it was after the death of Raber. It is possible that Drews may have made the statement both before and after, and thus an apparent discrepancy in the testimony might be reconciled; but be this as it may, it was a matter for the jury, and we think there was no error in permitting her to answer the question.

For reasons already suggested we think the testimony complained of in the second assignment was properly admitted. In connection with other testimony then before the jury it tended strongly to prove the guilt of some of the prisoners ; and as to the others, it was expressly limited in its effect to those only who might be connected with the crime by other competent evidence.

The third assignment relates to the testimony of Mr. Schweinhard. The court, in admitting it, remarked that, “ This, in connection with the declarations of Brandt, Weise and Hummel, already in evidence, is a circumstance. It may be slight of itself, still as to those present at the time it was competent to go to the jury.” Keiser had testified that he saw the parties together at the same time, and heard them talking about money. He says, “ They were behind the shed and didn’t talk that anybody else should have heard it, I think.” If, as the testimony would seem to indicate, the subject of their conversation was money, and Stichler said “ I must have it to-day, I can’t wait any longer,” the circumstance, though slight in itself, might properly be considered by the jury in connection with other facts and circumstances in the case. We cannot say there was error in receiving the testimony.

It is contended that a portion of the charge embraced in the fourth assignment was in effect a “binding instruction to the jury that they must believe Lena Peters, and that it was their duty to start out with that truth.” We do not so understand the charge; nor do we think the jury could so construe the language of the learned judge, especially when it is considered in connection with what immediately precedes the expression complained ■ of. After referring to the testimony of Mrs. Peters the jury were told that the whole of her testimony should be scrutinized, and the declarations, testified to by her, should be received with great caution; that before they gave it the effect of truth they should be well assured, in the light of the surrounding circumstances, of her credibility and the truthfulness of her testimony. Having thus carefully cautioned the jury against hastily accepting her testimony as true, the learned judge appears to have assumed, for the purposes of further instruction, the possibility of their finding it to be true, and then proceeded to indicate the conclusions which, in that event, might be drawn from the evidence. Taking the charge as a whole it was not calculated either to confuse or mislead the jury. In the concluding part of it they were expressly told that none of the testimony should be lost sight of or excluded from their consideration; that the credibility of the witnesses was for them; that all the evidence was submitted to them, and as they found the truth to be so should they declare by their verdict.

The question raised by the fifth assignment of error was fully considered and determined in Campbell v. The Commonwealth, 3 Norris 187; and we see no reason to doubt the correctness of that decision. The 44th section of our Criminal Procedure Act is a transcript of the English statute, 11 & 12 Victoria, ch. 46, sect. 1. Mr. Archbold, in his Criminal Practice and Pleading (vol. 1, p. 71), after quoting the statute, says: “ In all cases of felony, therefore, the accessory is punished in the same manner precisely as the principal felon; and he may now be indicted either as a principal — that is, he may be charged in the indictment with having actually committed the offence as principal in the first degree — • or he may be indicted as for a substantive felony, or he may be indicted as accessory with the principal, at the option of the prosecutor.”

If the jury were satisfied, as they no doubt were from the evidence before them, both as to the fact of the homicide and its grade, it only remained for them to determine who of the other prisoners, if any of them, were shown to be accessories before the fact. They have declared by their verdict that the' plaintiffs in error were two of them; and in view of the testimony properly before them we cannot say they were not justified in coming to that conclusion. The theory of the Commonwealth was that some of the prisoners, including Brandt and Hummel, were associated together for the purpose of procuring insurance on the life of Haber, without any apparent motive other than to realize the insurance money payable upon his death; that as soon as they had secured to themselves, as they supposed, assignments of the policies, they set about maturing and carrying into execution a scheme for the murder of Raber; that the first suggestion was “ to chloroform him,” but finally it was determined to drown him, and for this purpose they hired Drews, who, with the assistance of Stichler, executed the plan. In support of this theory, many facts and circumstances, together with separate acts and declarations of each of the prisoners, were shown, tending to prove that while Raber came to his death by the hand of Drews and Stichler, the plaintiffs in error with others were cognisant of the intended murder; and encouraged its commission, It has not been our purpose to refer particularly to the testimony further than to indicate that there was some evidence tending to connect them with the murder as accessories before the fact.

It must be apparent from what has already been said, that the ingredients necessary to constitute murder of the first degree were proved to exist. The credibility of the witnesses was exclusively for the jury. If they were believed, the body of the offence was clearly proved, and the only serious question was who, besides Drews and Stichler, were the guilty parties. That was a question exclusively for the jury, and after they have passed upon it, and the verdict has been approved by the learned court before whom the case was tried, it is incumbent on the plaintiffs in error to satisfy us that they have just reason to complain of the judgment. This they have failed to do. The assignments of error are not sustained.

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