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May 28, 1953


Appeal, No. 25, March T., 1953, from judgment and sentence of Court of Oyer and Terminer of Jefferson County, Aug. Sessions, 1951, No. 1, in case of Commonwealth of Pennsylvania v. Donald Leroy Smith. Judgment and sentence affirmed.


William J. McKnight, 3rd and Jesse P. Long, for appellant.

William A. Sykes, District Attorney, with him George H. Kurtz and John E. Aikman, for appellee.

Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.

Author: Chidsey

[ 374 Pa. Page 222]


The defendant, Donald Leroy Smith, was tried on an indictment which charged him with the murder of one Otto McConnell. After a trial which lasted ten days, the jury found the defendant guilty of murder in the first degree and fixed the penalty at life imprisonment. Defendant's motion for a new trial was dismissed and this appeal is from the judgment and sentence entered in accordance with the verdict.

The deceased, a bachelor who lived alone on his farm, was last seen alive by other than defendant at 4:30 P.M. on April 9, 1951. His body was found on the floor of his barn by his sister on April 11, 1951 at 11:30 A.M. X-rays and autopsy revealed four.22 calibre bullets in his head and one in his neck. Death had resulted from bullets entering his brain. Investigation by the State Police revealed that the deceased's 1949 Chevrolet truck was missing. Suspicion was directed toward defendant, a 16 year old youth, who was missing from the home of Frank Shofestall (located eight miles from McConnell's farm) where he had been placed on parole as a juvenile delinquent. At about the time defendant departed from the Shofestall home, a gray jacket, four silver dollars, a $5 bill and a. 22 calibre revolver also disappeared. Testimony was introduced by the Commonwealth to show that on March 31, 1951, defendant said to Max Shofestall, son of Frank Shofestall, that "I'll get him yet", referring to McConnell, and stated that the deceased had accused defendant of stealing and cheated him out of some money; that on April 8, 1951, at 8:00 P.M., defendant took a taxicab from a point some distance from the Shofestall farm to a point two and one-half miles from McConnell's farm; that at about 8:00 P.M. on April 9, 1951, about three and one-half hours after deceased was last seen alive, defendant was seen driving at Chevrolet truck in Emrickville, Pennsylvania (about eight miles from the McConnell farm),

[ 374 Pa. Page 223]

    and at 11:00 P.M. on the same date he was seen driving the same truck near Freeport, Pennsylvania (about 60 miles southwest from the farm of the deceased). The truck, which had been missing from McConnell's farm, was found on April 10, 1951 where it had been abandoned near New Martinsville, West Virginia. Defendant hitch-hiked as far south as Dallas, Texas and New Orleans, Louisiana, and eventually appeared on June 4, 1951 at the Travelers' Aid Office in a railway station at Hattiesburg, Mississippi. He identified himself to Mrs. Rannie Berdette, a case worker for the Travelers' Aid Society, told her he was hungry, that he had run away and wanted to go home. Defendant told Mrs. Berdette that his parents had no telephone, but that Dr. Shaffer, on whose farm they lived, did. After giving defendant a meal ticket, Mrs. Berdette called Dr. Shaffer on the telephone and was informed that defendant was wanted on a very serious charge. She then called the Hattiesburg police, but before they arrived defendant returned and had a further conversation with Mrs. Berdette. In this further conversation Mrs. Berdette asked defendant what he had done and he said: "I shot a man and killed him." and "I shot him five times.". Shortly thereafter defendant was taken into custody by the Hattiesburg police. About one hour later he was questioned by four Hattiesburg police officers, who knew nothing about him except that he was wanted in Pennsylvania. After being questioned for one-half hour, defendant made a statement which was typed by one of the officers and signed by defendant. The whole procedure, including the questioning and typing of the statement, consumed about one hour. This statement consisted of about 300 words in narrative form and was a confession that defendant had killed Otto McConnell.

On June 6, 1951, Officer John Lepley of the Pennsylvania State Police and Sheriff Joe Shaffer of Jefferson County, Pennsylvania, arrived in Hattiesburg, Mississippi

[ 374 Pa. Page 224]

    to return defendant to Jefferson County, where he had been charged with McConnell's murder. On the next day, June 7th, Smith was again questioned for an hour in the presence of Officer Lepley and Sheriff Shaffer and three of the officers of the Hattiesburg police force. Defendant made another statement which was reduced to writing and signed by him, in which he repeated the facts set forth in his original signed confession and admitted that he killed McConnell.

On the same day, June 7, 1951, Sheriff Shaffer and Officer Lepley left Hattiesburg with defendant in an automobile, and arrived with him at the Clarion, Pennsylvania, State Police Substation at midnight on June 9th. There, in response to questions by the district attorney and assistant district attorney of Jefferson County and a State Police officer, defendant again confessed that he had killed McConnell. The period of interrogation was 50 minutes. Although this confession was in question and answer form and contained more detail than the prior confessions, it was in most respects a repetition of the facts contained in them. It was reduced to writing by the district attorney's secretary and signed by defendant.

Defendant was arraigned before a justice of the peace in Brookville, Jefferson County, Pennsylvania, at 6:00 A.M. on June 10, 1951 and lodged in the Brookville jail to await trial. While he was there defendant made two more oral confessions, one on June 14, 1951 to Guy Wetzel, who brought the food to the prisoners, and another on October 17, 1951 to Henry Davis, a Brookville police officer. All of the six confessions were admitted into evidence.

Defendant did not testify at the trial, which commenced on November 5, 1951, and the only defense offered was insanity. Members of his family, neighbors and school teachers testified to his early background and his conduct and habits generally. It was testified that

[ 374 Pa. Page 225]

    defendant had an intelligence quotient of 111, which is above average; that he was one of 13 children; that his family had been supported by public assistance and by tenant farming the farm of Dr. R. L. Shaffer for eight years. The principal witness for the defense was Dr. M. H. Bowers, a psychiatrist, who had examined defendant on October 23, 1951, and on the basis of that examination and a hypothetical question testified that defendant was mentally ill and did not know the difference between right and wrong on April 9, 1951, the date of the crime.

In rebuttal the Commonwealth called as a witness Dr. Robert H. Israel, Superintendent of Warren State Hospital, a psychiatrist, who testified that he had examined defendant on August 18, 1951 and had heard all of the testimony in the case and that in his opinion defendant at the time of the trial and on April 9, 1951 was aware of the nature and consequence of his acts, knew the difference between right and wrong and was not insane or mentally ill.

After an exhaustive charge by the court, which covered 79 typewritten pages in the original transcript of testimony, the jury, after deliberation, returned a verdict of guilty and fixed the penalty at life imprisonment. Appellant contends that his motion for a new trial should have been granted and alleges nine trial errors. We will consider them in the order presented.

His first contention is that the court erred in its charge on the subject of insanity. It first should be noted that only a general exception was taken to the charge and therefore the court can be reversed only for fundamental error therein. The court's charge on this subject was extensive, covering approximately six pages of the transcript of testimony. Appellant relies upon a statement made by the trial judge when he was ...

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