Almost immediately following the May 1881 verdict of the jury finding that Henry Romberger and Frank Romberger were guilty of murder in the first degree in the death of Daniel Troutman, the lawyers for each of the convicted filed separate appeals arguing for a new trial.
The story of the appeals is presented here mostly from the the pages of the Harrisburg Telegraph, but also from the Harrisburg Daily Independent.
The appeals were successful and new trials were granted, based solely on the interpretation of the law as relayed to the jury in the “charge” given to them prior to their deliberations.
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From the Harrisburg Telegraph, 4 May 1881:
THE CONVICTED MURDERERS.
Reasons Filed for a New Trial in the Case of Henry Romberger
R. L. Muench, one of the attorneys of the convicted Troutman murderers, this morning filed the following reasons for a new trial:
1st. Court erred in admitting confession of defendant, Henry Romberger.
2nd. Court erred in charging the jury that the retreat of defendant could not and did not warrant jury in finding a verdict of murder of second degree.
3rd. Court, by its charge, led the jury to infer that the offense was murder in the first degree.
4th. Court erred in saying to jury that Daniel Troutman, the person upon whom homicide had been committed, would have been justified in shooting one of the defendants and then knocking the brains out of the other.
5th Court erred in compelling defendant, Henry Romberger, to go to trial in absence of material witnesses.
S. O. BOWMAN
R. L. MUENCH
Counsel for Henry Romberger
The motion for a new trial will very likely be argued next week.
The special term of court fixed for May 16th has been declared off, and will not be held.
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From the Harrisburg Telegraph, 11 May 1881:
THE ROMBERGERS.
Application for a New Trial of the Murderers of Daniel Troutman.
J. C. Durbin, Esq., this morning filed the following reasons for a new trial in the case of Frank Romberger, convicted with Henry Romberger, of the murder of Daniel Troutman:
Commonwealth vs. Henry Romberger and Frank Romberger. Murder.
In connection with and in addition to the reasons already filed for a new trial in this case, the following are given:
A new trial should be granted because:
1st. The jury rendered a verdict of a higher degree of murder than the law and evidence would justify.
2nd. The court did not charge the jury as requested by counsel for Frank Romberger in his second point as follows: “If you are convinced by the evidence that Frank Romberger was present at Troutman’s House on the night of the killing, with intent to commit a burglary or robbery, but had given up the attempt and was running away for his own safety when he was fired upon by Troutman, he, excited, without premeditation or deliberation, returned the fire which resulted in the death of Troutman, he is not guilty of murder of the first degree.”
3rd. The court did not charge the jury as requested by counsel for Frank Romberger in his fifth point, as follows: “If you believe that Henry Romberger and Frank Romberger went to the house of Troutman on the night of the killing for the sole purpose of committing a robbery or burglary and not to kill any person, and that some other person than Frank Romberger shot and killed Troutman, not while the burglary or robbery was attempted to be committed, but after the attempt was given up, and they were running away, then Frank Romberger is not guilty of murder or manslaughter.
4th. The court did not charge strictly as requested by counsel for Frank Romberger in his third and sixth points.
5th. In charging in substance that it is not the law that it would be a less offense than murder of the first degree if they had given up the attempt to commit burglary or robbery, and were running away, according to the facts in this case.
6th. There had been new testimony discovered since the trial, which is in favor of Frank Romberger.
J. C. DURBIN,
Attorney for Frank Romberger.
The argument for a new trial will be held tomorrow.
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From the Harrisburg Telegraph, 11 May 1881:
THE ROMBERGERS IN JAIL
Bouyed Up by Hope of a New Trial – Frank Protests His Innocence and Says Henry Can Clear Him – Henry Responds, “I did not Convict Him, and Can’t Clear Him.”
Henry Romberger and Frank Romberger were visited this morning by a TELEGRAPH reporter, who had a short conversation with each man. Frank was first seen. He always has his hat on, which he tilts at short intervals, nervously, when in conversation. To the “good morning” salutation of the reporter, Frank smilingly responded “How are you,” and when assured that the reporter was in good health he quickly added: “I never felt better in my life. I am getting ready to go to court to hear the argument for a new trial, and if I get that I am sure I will be cleared. God knows I am innocent. If Henry Romberger will go on the stand and tell the truth, he will say I am innocent. I did not shoot old Troutman, because I was not there to do it.” Frank said this with a firm voice and flashing eye. He persists in declaring that certain witnesses had perjured themselves, and if he had a new trial this could be shown. Frank’s father has been in the city since yesterday, and had left him but a few minutes before the reporter saw him. He looks better now than at any time since he has been in prison, and is full of hope of a new trial.
Henry Romberger is the same reticent, somber-looking man he has ever been. He speaks very little, has a sad look, seemingly impressed with the awfulness of his situation. His greeting of the reporter was very friendly. Being informed that Frank had said “he could clear him if he would go on the stand and tell the truth,” he simply replied, “I did not convict him, and all the truth I could tell would not clear him, because I don’t know anything about it. I don’t know where he was that night. I was not at Troutman’s” This Henry said in a slow and deliberate way and when the reporter reminded him what the old man Troutman had said of his being there and having shot him – Henry replied, “Ah, but the old woman did not recognize me – she did not say I was there.” Henry spoke of a new trial very little. To the advice that it would be best to prepare for the worst, he said: “I know it, and intend to do so.”
In physical appearance the Rombergers look well. Each says he sleeps well, and their faces indicate this. They eat heartily, and are no trouble whatever to the prison authorities.
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From the Harrisburg Telegraph, 12 May 1881:
No Argument for a New Trial Today
This morning was set for the argument for a new trial in the case of Frank Romberger and Henry Romberger, convicted of murder in the first degree. The stenographer being absent in attendance at his mother’s funeral in New York State, and the judge’s charge not having been filed, it was impossible to hold the argument, as the defendants’ counsel are only excepting to what they term errors of the charge. By agreement the argument was postponed until next Thursday afternoon at two o’clock.
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From the Harrisburg Telegraph, 19 May 1881:
A NEW TRIAL
Argument for It in the Case of the Rombergers
The argument for a new trial in the case of Henry Romberger and Frank Romberger, convicted of murder in the first degree, came off this afternoon.
At 2:15 the prisoners were brought into court. Both were very pale, there whole appearance having changed materially since their conviction. Frank showed change in appearance and the hardship of of confinement more than Henry, he he was more self-possessed. During the argument he sat erect, and seldom turned his eyes from the court, while Henry betrayed his nervousness in every move, frequently pulling alternately at his moustache and coat sleeves, and often furtively glancing around the court room.
The argument was opened by Mr. Durbin on behalf of Frank. He began by saying that most likely this case would not get before another court. The prisoners are without means, so that if the judgment of this court is against them, it is not likely that an appeal can be taken to a higher tribunal. Mr. Durbin’s argument was directed chiefly at the circumstantial character of the evidence, which should have been carefully considered before a verdict of murder in the highest degree was rendered. During the argument an affidavit made by Henry Sierer was read. This affidavit declares that the affiant saw and passed Frank Romberger in Lykens on the evening of the murder about dark. Affidavits of the same import made by Williard Romberger and John J. Williard were also read. The evidence was then carefully examined and commented upon, and the veracity of some of the Commonwealth’s witnesses challenged, counsel contenting that enough after discovered testimony had been found to warrant a new trial.
In conclusion Mr. Durbin thought that under the evidence it was certainly too much to visit these men with the extreme penalty of the law and take away from them the benefit of future confessions by other parties.
S. S. Bowman, Esq., was the next speaker on behalf of the condemned men. Henry Romberger, counsel believed, was unduly controlled and led while under duress to make certain remarks which were misconstrued into a confession. Not satisfied with trying to have him make statements while on the way to prison, he was followed into the prison and his words taken there. The court erred in admitting this confession. Henry Romberger is a negative character, whose actions can be moulded at the will of stronger men. The men who received this confession could recollect none of the surrounding circumstances that brought out this confession, yet they could recollect almost every other circumstance regarding the arrest of Henry. These detectives who seek to win a little fame out of this case should have their testimony scanned with great caution. This whole case disclosed the fact that there was no intention to kill. They did not touch old man Troutman all the time they were in his room, when they had a good chance. They ran when he told them to “get out” and did not shoot until he followed them with a gun. How far dared he follow then? Who will fix the limit? There must be some distance. Mr. Bowman quoted from Supreme Court decisions that questions of fact must be submitted to the jury, and thought the court should have instructed the jury as to the distance. The court’s instructions to the jury should have instructed the jury as to the distance. The court’s instructions to the work had such a weight that the jury could not bring in any other verdict. “I believe from what I have heard that before the charge of the court the jury would have agreed upon a verdict of murder in the second degree, but the charge made a change in their minds.”
Mr. Bowman said that defense could have proved by Alice Derr, the missing witness, that she told Henry Romberger to tell the Troutman children to come to singing school , and this would have taken away what looked like a design on the part of Henry to get the younger Troutman away from the house that night that he might have a better chance to rob to old folks.
Mr. Hollinger, for the Commonwealth, took up the after discovered testimony presented by Mr. Durbin, and asserted that used at the trial it could not possibly change the aspect of the case, insamuch as it related to the seeing of Frank Romberger at Lykens at a time that his whereabouts was not disputed by the Commonwealth on trial.
District Attorney McCarrell said he knew that if there was any reasonable doubt of the guilt of the prisoners, then the court and the Commonwealth were willing to give them the benefit of the doubt. The speaker then took up the points made by Mr. Durbin. Regarding Mrs. Schamper, Frank Romberger witness to prove an alibi, who Mr. Durbin said was not contradicted, the District Attorney asserted that the woman’s own husband and several other witnesses had contradicted her by statements she had made. The efforts made by Frank Romberger to establish an alibi fell to the ground, and every attempt made by defense to do so only strengthened the Commonwealth. The testimony of Mr. Dietrick, who met Frank Romberger and Henry Romberger in a carriage on the afternoon of the murder, is disputed, on the ground that he drinks. The testimony was one of the important links in the chain of evidence. The speaker was convinced beyond doubt that Frank Romberger fired the shot that killed Daniel Troutman. All the evidence points to him. The confession of Henry Romberger was not used by Frank Romberger, and the jury was especially cautioned that it could not be.
District Attorney McCarrell was engaged in his argument when our report closed this afternoon at 4:15. R. L. Muench, Esq., was expected to reply on behalf of the prisoners, when the papers in the case would be take by the court and the decision reserved.
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From the Harrisburg Telegraph, 20 May 1881
ASKING FOR A NEW TRIAL
The Concluding Arguments for the Rombergers
Our report of the Romberger application for a new trial closed yesterday while District Attorney McCarrell was talking. Mr. McCarrell reviewed the evidence and showed that there was absolutely no excuse for the deed and it could not have been done in self-defense. The men were there with a helpless old man, and there was no evidence before the court to show that when the defendants had fled they had repented and given up their felonious intentions. As to the effect of Henry Romberger’s confession on the jury, it could only be said that the court could not have guarded Frank Romberger more carefully than he was guarded. The jury was as intelligent a one as ever sat on a case in this court, and what he knew of the tenderheartedness of some of the men on that jury, they had gone into the box determined to save the lives of these men if such a thing were possible from the evidence.
Mr. Muench closed for the defense. He said it was not complained that anything had been done in this trial which was not fair, nor that any evidence had been admitted which should not have been. But it is complained that the Judge had in his charge unduly influenced the minds of the jury as to the verdict. He had not done this so much in the matter of his charge as in his manner. The Honorable Judge had in his thirty-four years on the bench established a widespread and unsullied reputation, and his opinions are accepted with the greatest respect. The defense complains that by his manner the Judge impressed the jury with his conviction that these men must be convicted of murder in the first degree. Taking all the circumstances into consideration the jury were not permitted to decide as to the degree. The jury were presented with points in his honor’s charge that not being learned in legal lore they could not understand and could not discriminate between. In summing up Mr. Muench said that prisoner were entitled to a new trial for three reasons:
First, because of the nature of the charge; second, because of the words of the charge; and third, because of the absence of untrammeled volition in the decision of the jury.
Mr. Durbin followed in a few words on the newly discovered testimony as another cause for a new trial.
The court then took all the papers in the case and will reserve the decision.
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From the Harrisburg Telegraph, 24 May 1881
The Romberger Decision Not Announced.
Court adjourned to-day until June 13. As no decision was given on the application for a new trial for the Rombergers, the prisoners and the public will have to wait until that date to hear the court’s determination. It is believed around the court house that the judges have held a consultation and come to a conclusion, but no reason is given for the delay in promulgating it, except a desire to appear not to have decided hastily.
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From the Harrisburg Daily Independent, 10 June 1881:
A formal decision in the argument for a new trial in the Rumbergers case, is expected on Monday.
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From the Philadelphia Inquirer, 14 July 1881:
HARRISBURG
THE TROUTMAN MURDER CASE
New Trial Granted – The Judge and the stenographer at Issue, and the Rumbergers Reap the Benefit.
SPECIAL DESPATCH TO THE INQUIRER
HARRISBURG, June 13 [1881] – The Dauphin County Court met this morning at ten o’clock, Judges Pearson and Henderson on the bench. The opinion on the motion for a new trial in the case of Henry Romberger and Frank Romberger, convicted of murder in the first degree, was read, which begins by stating that this cause was tried with all the proper care as when human life is at stake, and that the court was satisfied that all the evidence which was received was legal, and that the verdict was fair and in accordance with the court’s judgment.
One only doubtful point was on the court’s answers to several requests to charge made by the defense, as taken down by the stenographer. The judges said that the stenographer’s notes did not agree with their recollection of what was said, but the notes are made the standard by the law and must be respected. The defense asked the court to charge that if the jury believe the prisoners were running away at the time Troutman fired his gun at them, and they returned the fire which resulted in his death, they are not guilty of murder in the first degree. In answering this request the stenographer makes Judge Pearson say that if the prisoners fired and killed Troutman while they were running away, they are just as guilty of murder in the first degree as if they had not run away. The court says they forbore to express an opinion as to the degree of guilt all through the charge, because the Supreme Court has decided that the jury must declare the degree in all cases of murder by poisoning, by lying in wait or in the perpetration of felony. Therefore, the court is of opinion that the answer to the request was misrepresented. The court’s intention was to negative the point without saying of what degree the murder was. The court also probably did not make itself clear in its answer to the third point which in substance asked the jury to say the shooting was done in self-defense if they believe the prisoners thought themselves in danger when Troutman fired at them. The court thought this point was negative by the evidence that the prisoners must have known the gun was unloaded after it had been shot off once, and consequently could not have been in feat of their lives. However, the court should have said the question of the prisoners being in fear of their lives was altogether for the jury. The court said they had carefully considered the case and consulted on all technical point raised. They had also taken into consideration that the prisoners were poor and could not get means to have the case reviewed in the Supreme Court. Therefore the court was constrained to order a new trial. The proper entry was made on the record and the prisoners were remanded to jail, whence they were brought before the court began to read its opinion. Both the prisoners had an anxious, careworn look when brought into the room, but, as the opinion was read showing there was hope of another chance for their lives, they brightened up. When the new trial was ordered both prisoners expressed their satisfaction by smiling and shaking hands with their counsel and the deputy sheriffs. As they were going back to jail they expressed entire confidence that a new trial would result in their acquittal.
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From the Harrisburg Daily Independent, 13 June 1881
THE RUMBERGERS
A NEW TRIAL GRANTED
Formal Decision of the Court
As foreshadowed ten days ago in the INDEPENDENT, upon the assembling of court this morning, Judge Pearson rendered a formal decision in the case of the Commonwealth vs. Henry Rumberger and Frank Rumberger, convicted of murder in the first degree, which allows them another trial. The decision occasioned very little surprise in view of the previous publication, and but a few persons were present when it was read. The prisoners were brought into the court room at an early hour, both looking remarkably well, though Frank has been suffering with a slight attack of malaria.
They received the decision with a pleasant smile, but with no degree of exultation, as it was what they had previously been led to expect.
The decision of the court granting a new trial is based on the point raised in reference to the court’s charge to the jury, in which it was shown by the stenographer’s notes that a foundation had been laid for a verdict of murder in the first degree. While the judge doubts whether his remarks were properly reported, he thinks it but just that he should give the defendants the benefit of the situation, as it was clearly for the jury, as stated by the act of assembly, to fix the degree of guilt.
This afternoon an INDEPENDENT reporter called on the prisoners. Both were in an excellent humor, and gave unmistakable evidence that the decision has stirred up new hopes of life. Frank was busy drawing and lettering, most of his mottoes being Biblical quotation. These are executed in a fine manner. He expressed a hope now for a fair trial when he was confident of acquittal.
Henry in reply to the question, “You feel much better, don’t you?” said with much warmth, “Oh, yes sir.” He was engaged in repairing a pair of trousers. He dis not express his opinion as to the result of a new trial. He seems to be content with anything but prefers imprisonment to hanging. His only inquiry was when the trial would come off. He weighs over 160 pounds and has maintained that standard since his incarceration.
The general opinion is now expressed that both will be induced to enter a plea of murder in the second degree and that it will be accepted by the court.
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From the Harrisburg Daily Independent, 20 June 1881:
Court Notes
It is generally supposed that a special session of court of oyer and terminer will be held on the third Monday of October for the purpose of giving the Rumbergers their new trial.
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From the Harrisburg Telegraph, 20 June 1881:
Trial of the Rumbergers
It is intimated that the new trial of Henry Rumberger and Frank Rumberger for the murder of Daniel Troutman will take place at an adjourned session of oyer and terminer court to be held on the third Monday of October.
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From the Harrisburg Daily Independent, 7 July 1881:
The Rumbergers
Both the Rumbergers seem as happy as crickets in their prison cells. Henry has just renovated his cell, and given it a complete coat of whitewash, around the lower portion, of which he has festooned it in an artistic manner with a blue wash. He has also painted many scriptural quotations on the wall. Frank was hard at work this morning improving his cell in the same manner. He said he had a two days job ahead of him.
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News articles transcribed from Newspapers.com.
Corrections and additional information should be added as comments to this post.