93 Pa. Super. 339 | Pa. Super. Ct. | 1928
Argued March 12, 1928.
Shortly after midnight on July 8, 1927, the wife and six children of Marks R. Fair lost their lives in a fire which destroyed their home, a frame dwelling-house located in a somewhat isolated valley near Bernville, Berks County. The Commonwealth contends that the fire was caused by the explosion of a still in the basement of the house, with which Nicholas Ernesto, Ben Myers, Thomas DeMaio, Angelo Consoli and the said Marks R. Fair, acting together and pursuant to a conspiracy to violate the liquor laws, were redistilling a denatured alcoholic product for the purpose of removing the denaturants, to the end that it might be sold for beverage purposes. Upon the theory that the deaths of these seven persons resulted from the doing of this unlawful act the five defendants above named were indicted for involuntary manslaughter under a *341
single indictment containing seven counts, the first of which was based upon the death of the wife, Kate M. Fair, and each of the remaining six on the death of a child. When the defendants were called for trial the husband, Marks R. Fair, entered a plea of nolo contendere and the jury was sworn to try the other four upon their pleas of the general issue. Marks R. Fair testified as a witness for the Commonwealth. At the conclusion of the Commonwealth's testimony each of the defendants demurred to the evidence. The Commonwealth joined issue on the demurrers and the learned trial judge, after discharging the jury (Com. v. Sonis and Sonis,
The assignments of error are identical in each appeal and raise two questions: (a) whether the evidence was sufficient to warrant the conviction of the respective defendants; and (b), if so, whether a sentence may legally be imposed under each count in the indictment. The effect of the demurrers was clearly stated by Judge HENDERSON in Com. v. Williams,
There, as here, the trial judge found that there was competent testimony to warrant such a conclusion by the jury and it was held that the burden was therefore cast upon the appellant to show that in all the evidence there was not to be found support for the accusation contained in the indictment. A detailed recital of all the distressing circumstances surrounding this tragedy is unnecessary. The material facts shown by the evidence and the inferences reasonably and fairly deducible therefrom are these: Several months prior to the date of the fire Ernesto, Myers, DeMaio and Consoli, having engaged in a conspiracy to violate the Snyder Act of March 27, 1923, P.L. 34, by manufacturing and selling intoxicating liquor for beverage purposes, were desirous of securing a secluded place for the operation of a still, with which they proposed to redistill denatured alcohol (which had been released to certain manufacturers of barbers' supplies in Philadelphia) for the purpose of removing the denaturants to such an extent that the product resulting from the redistillation might be sold and used for beverage purposes. Having become acquainted with the location of Fair's home during the previous hunting season, they rented the basement of his house as a convenient place for their operations. Ernesto, Myers and Consoli made the arrangement with Fair for a rental of $50 per month and agreed to pay him $40 per week for driving *343 the truck used to bring the so-called "toilet water" from Philadelphia to his house. A boiler, fired with anthracite coal, and a still were installed in the cellar some five or six weeks before the fire. The denatured alcohol was purchased in Philadelphia and transported by truck in large steel drums. After redistillation in Fair's cellar it was placed in tin cans for sale. DeMaio at one time paid Fair $25 on account of his services in driving the truck; hauled coal for the boiler and sometimes drove the truck himself. Fair drove the truck to and from Philadelphia at least three times. On the first trip he brought back two barrels of denatured alcohol; on the second, one hundred and eighty-six five-gallon empty tin cans; and on his last trip, on the day of the fire, five drums of "hair tonic." About 9:30 o'clock on the evening of that day, Ernesto, Consoli and Fair were together at the Fair home. Ernesto tested the liquid which Fair had brought from Philadelphia and said he needed all that could be put through that night, twenty-five or thirty cans. Ernesto left the premises and Consoli remained in the basement.
When Fair's family retired to the second story about 10:30 he remained on the first floor and went to sleep on a lounge because he intended to go to Philadelphia early the next morning. Shortly after midnight an explosion occurred which knocked him off the lounge. The entire house was almost instantly aflame. Fair ran upstairs in a vain attempt to rescue his family and, as the floors fell in, jumped out of a window. The explosion was heavy enough to jar at least one house several squares distant and to rouse several neighbors who, upon their arrival, found "the whole house in flames, coming out the windows" and Fair wounded and burned, and Consoli severely burned. In the ruins were found the boiler intact; the still "knocked apart;" a pump; several fifty-gallon drums; a large number of empty cans; and one containing a *344
liquid from which a sample was taken for chemical analysis. The expert testimony showed that the sample was a redistilled product, containing slight traces of two denaturants; that it contained 24.21 per cent. of ethyl alcohol by volume; that it could have been distilled from toilet water; and that the process of distillation would remove denaturants if the liquid "were strictly held to the boiling point" during the process. There was evidence that the vapor produced in the distillation of alcohol is more highly inflammable than alcohol itself. Fair, at the trial, testified positively that there was no fire in any part of the house above the basement when the family retired, but admitted on cross examination that during the forenoon of the day following the fire and while in the hospital he made a contrary statement which he now says was untrue. This testimony reads: "Q. What did you say that time was the cause of the explosion? A. I was pretty bad and I said it was a stove, a coal-oil stove exploded. Q. At that time you thought you were going to die? A. Yes, sir, and it was pretty near. Q. And you said at that time it was a coal-oil stove that exploded? A. Yes, sir. Q. You didn't say anything about Consoli that time, did you? A. No, sir. Q. As a matter of fact you don't know what did explode, do you? A. No, sir. Q. And you don't know what caused the fire? A. Not while I was sleeping, no, sir." Upon this branch of the case the learned counsel for appellants concede in their printed brief that there was evidence that defendants rented the cellar for the purpose of setting up the still and operated it to redistill hair tonic, and that their object "was to sell the product for beverage purposes." Their principal contention, as stated in their brief, is: "There was nothing in the evidence which would warrant the statement that the still, while in operation, exploded; nor is there any warrant for the conclusion or finding that the fire was caused by the explosion of the still. The statement *345
[in the opinion refusing a new trial] that the still was damaged, as it would have been if it had exploded, is also without the support of any testimony produced at the trial." The county detective, producing the parts of the still found in the ruins, testified: "Q. What is the copper apparatus in the court room there? A. The back ones there are what you call a still...... Q. I suppose the front one you call a coil? A. A coil that was in the condenser, cooling tank. The cooling tank was all burned away, it was all battered up, and the coil was there just laying right in it...... Q. You couldn't tell from the looks of the still when you saw it as to whether it had been in operation or not? A. No, sir." The trial judge had an opportunity to observe the condition of the still and doubtless his conclusion that it had been "damaged as it would have been if it had exploded" was based to some extent upon this inspection. From the established facts that within the three hours preceding the explosion Ernesto told Consoli that he "wanted all that he [Consoli] could put through till tomorrow morning. He needed it....... About twenty-five or thirty cans," that Consoli remained in the basement and Fair lay down on a couch in order to be ready to go to Philadelphia early the next morning, we think it is a reasonable inference that the still and boiler were in operation up to the time of the fire; and from the established facts that the vapor generated in the process was highly inflammable, that there was an explosion severe enough to throw Fair off the lounge and to jar and rattle the shutters of a neighboring house several squares away, that the explosion was followed so quickly by the fire, and that Consoli was severely burned, it seems to us that it is also a fair inference that the fire was caused by an explosion of the still. The facts and circumstances are not only all consistent with such inferences but also seem to be inconsistent with any hypothesis other than that the still exploded while being operated by Consoli *346
in obedience to Ernesto's urgent instructions. We adopt for the purposes of this case the definition of involuntary manslaughter, approved by our Supreme Court in the recent case of Com. v. Mayberry,
On the other branch of the case, however, we are of opinion that, under the principles announced for this court by our late President Judge ORLADY in the case of Com. v. Veley,
The sentence of the Court of Quarter Sessions in each of the four above mentioned appeals is reversed and set aside and the respective records are remitted to the said court with direction to proceed to sentence the defendants anew in due form and according to law.
