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Subject: [PAWASHIN-L] McCausland Murder #22 - Judge Paxon's Opinion
Date: Sun, 1 Oct 2000 16:24:14 EDT
WAYNESBURG REPUBLICAN
JANUARY 16, 1890
JUDGE PAXSON'S OPINION
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GRANTING BENJAMIN CLARK A NEW TRIAL
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THE ABSENCE OF THE TESTIMONY
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OF THE TRIAL PREVENTS A FULL CONSIDERATION OF THE CASE BY THE SUPREME
COURT
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THE JUDGE "SLASHES AROUND" PRETTY GENERALLY
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Below we give the full text of the opinion of Chief Justice Paxson, of
the Supreme Court, in the case of the Commonwealth vs. Benjamin Clark,
appellant.
Ben. Clark, it will be remembered, was the third of the defendants tried
here for the murder of Wm. McCausland, the Allegheny drover who was murdered
and robbed on the McCann's Ferry Road, in Greene County in September 1887.
The first one tried was George Clark, who was convicted and is not under
sentence of death. The day for his execution has been fixed several times,
but owing to the non-decision of the Pardon Board, in whose hands a petition
for commutation of sentence rests, the Governor has granted a respite just
prior to the approach of each date appointed. The date is now set for
February 26th. Zach Taylor is also under sentence of death.
James Neff was the fourth one convicted, but Judge Ingram granted a new
trial for him and also a change of venue to Washington County, where he was
tried and acquitted a few weeks ago.
Ben Clark was tried in April 1889 convicted and a new trial applied for
but refused. His attorneys James F. Sayer and T. (I.or L.) Lincoln, Esqs.
took an appeal to the Supreme Court upon the refusal of the Greene County
Court to grant a new trial, where the judgment of the lower Court was
reversed.
The copy of Judge Parson's opinion was secured from the original on file
in the Prothonotary's office of the Supreme Court, by the Evening Standard,
of Uniontown, and first appeared in print in last Saturday's edition of that
paper. We take it from the Standard:
THE OPINION
Paxson, C. J. : - The defendant was tried in the court below for the
murder of William McCausland. The jury found him guilty of murder in the
first degree. If guilty at all, there can be no doubt as to the degree as it
was conceded the murder was perpetrated in the commission of a robbery. The
first specification is not properly assigned, and we might dismiss it without
more. The answer to the question is not given: nor is the testimony printed
to enable us to judge whether the answer did the defendant any harm. As,
however, the case involves the life of a human being we will pass over what
we regard as a palpable violation of the rules of court. We have referred to
this disregard of our rules so often and so pointedly, that we are surprised
so little attention is paid to it. In ordinary civil cases we do not notice
errors improperly assigned, but the issue here is too momentous to enforce
such a practice. The offer of evidence complained of is as follows. "George
Calvert on the stand for the commonwealth. We propose to prove by this
witness that about three weeks after the murder he was out hunting in the
woods called "Cloud's Woods" and came across the defendant and a man named
Newton Hunter, at or near an old coal mine; that he heard defendant say to
Hunter, "It will take all pap's got to clear him." and in the same
conversation heard the word "McCausland" used. This is for the purpose of
showing guilty knowledge on the part of the defendant." We must assume that
the answer of the witness sustained this offer. The answer was not given, as
before stated, but the case was argued here upon the theory that the witness
testified, as stated in the question.
In order to un this offer it is proper to say that the father of the
defendant, Frank Clark, Sr., was in prison charged with this murder, although
at the time of the alleged conversation with Hunter he had not been arrested.
Two other men, George Clark, and Zach Taylor, had previously been tried and
convicted of McCausland's murder. There was no direct evidence of the
defendant's presence at and participation in the murder, and the
circumstances (??????) this point was weak to state it in the (?)
manner. We are, of course embarrassed by the absence of the testimony and I
can only judge of it from the statements and arguments of the respective
counsel. If we are let in to error by reason of the meager presentation of
the case, the fault is not ours. This testimony was offered for the sole
purpose of proving guilty knowledge on the part of the defendant. If it is
competent at all it was not competent for any other purpose. Guilty
knowledge of a crime is a very different matter from the commission of the
crime, and the guilty knowledge here, is only show after the fact. Had this
defendant been indicted as an accessory after the fact, we are of the opinion
the evidence would have been competent; but he was indicted as a principal
and the guilty knowledge not shown to have been acquired before or at the
murder was used against him to show his participation in the crime itself.
There was not a word in the conversation that referred to the defendant's
commission of this murder, he was not speaking of himself at all. He merely
says, "It will take all Pap's got to clear him." Even this was vague and
indefinite. Clear him of what? It does not follow that it was to clear him
of McCausland's murder. Even if it appeared clearly that eh defendant was
speaking of this murder and that he had knowledge that his father
partitherein, it would be a hard rule to admit it as evidence off his own
guilt as a principal. It is no answer to say that it was admitted for a
specific purpose and that it did the defendant no harm. On the contrary I
have no doubt it had a crushing weight with the jury. I can conceive a case
where it would do little harm, and of circumstances where even such evidence
might be admissible, but we have here very slight evidence outside of this
particular matter and the confession to be referred to later of the
defendant's guilt as a principal. The remaining specification refers to this
admission of the defendant's confession or statement. We do not think the
objections that it was obtained by duress and was sworn, to are of much
importance. The testimony upon this one point is given in the commonwealth's
paperbook and it show very conclusively that the statement - it was not a
confession - was under his own free will and without either threat or the
promise of rewards or benefits in the future. The law is always tender and
merciful to a defendant; it will protect him against the use of a confession
drawn from him by holding out inducements to make it. But when a criminal
wants to ease his mind by a voluntary confession, it would be a weak
sentimental? To interfere with his doing so, nor do I see its force as a
statement is impaired by the fact that the justice administered an oath to
him. It was a foolish, blundering act on the part of the justice, but it was
voluntarily taken by the defendant. The facts bear no analogy to the
Commonwealth vs. Harmor, 4th Pa. 69. In that case the prisoner was brought
before the justice charged with homicide. The justice administered the oath
to the prisoner and then told him "If you don't tell the truth I will commit
you." Under such circumstances we are not surprised that Chief Justice
Gibson condemned the conduct of the justice in this strong language: "The
administering of an oath by the magistrate under such circumstances was a
gross outrage upon the accused; any information drawn by it or subsequently
on its basis, is inadmissible." The fact must not be overlooked that a
defendant in a homicide case may now take the stand and be sworn as a witness
on his own behalf. There would seem to be no good reason why he may not of
his own motion go before a magistrate and make a voluntary statement under
oath. It is quite a different matter when the oath is administered against
his will.
We see nothing then, in the circumstances under which this statement was
made, to exclude it, but we think it was inadmissible upon other grounds.
There is not a word in it which can be construed into an admission of
defendant's participation in the murder. The most that can be fairly claimed
for it is a confession of guilty knowledge after the fact. It would have
been proper evidence had he been on trial as an accessory after the fact.
But he was not on trial for that offense; it was a damaging piece of
testimony, and in our opinion should have been excluded.
Judgment reversed and a Venire facias de novo awarded.
To follow:
FEB 13, 1890
CLARK AND TAYLOR DOOMED
PARDON BOARD REFUSES TO INTERFERE IN THEIR BEHALF
THEIR EXECUTION WILL BE SOON
CLARK IS DEEPLY AFFECTED BY THE NEWS -- TAYLOR BEARS IT CALMLY AND ALMOST
INDIFFERENTLY
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