Commonwealth v. Zec ( 1918 )


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  • Dissenting Opinion by

    Me. Justice Simpson :

    Defendant was convicted of the murder of Novak Zinaic at Woodland, Beaver County, Pennsylvania, on October 28, 1916. It is said that the region is largely peopled by uneducated foreigners, who invariably carry concealed deadly weapons; that murders are common; and that when a quarrel ensues the question as to who shall be the murderer and who is murdered, is, largely, if not wholly, determined by the ability to draw such a weapon quickly. Those facts call for stern, repressive measures; but they likewise give pause, when a murder *258is being considered, lest a necessary preparedness be mistaken for premeditation.

    Deceased and defendant were Croatians, coming from the same immediate region in the old country, and it is said that “over there” deceased killed defendant’s brother, and had threatened to kill defendant, if defendant did not first kill him. On the evening of the murder they met at the boarding house of the deceased. They drank a quantity of liquor, but not enough, defendant says, to prevent him from knowing what he was doing. They had words, deceased calling defendant a pig, probably the most opprobious epithet applied by these people. They were ordered out of the house, and met again in the street, where, apparently, a reconciliation took place, deceased withdrawing the epithet, the parties shaking hands, and, with a friend of deceased, walking down the street together. When they were parting, deceased shook hands with his friend, and, turning to shake hands with defendant, disclosed a loaded revolver in his (deceased’s) pocket, which defendant says, deceased made a motion as if to draw; whereupon defendant shot him twice, killing him instantly. Defendant then ran to his boarding house, intending to leave the place, but a policeman came up, and the defendant, refusing to stop when ordered so to do, was shot in the leg, resulting later in an amputation thereof.

    While in the hospital he was indicted, and, shortly after he was in a condition to be removed, was placed upon trial. On account of his poverty the court, fifteen days before the trial, assigned counsel to defend him. An interpreter was required to enable them to understand each other, and it is said that that fact greatly restricted the preparation of the defense. At the trial defendant asked for a continuance upon the ground of inability to locate certain material witnesses during the short time since he had had counsel. The district attorney stated that he also had unsuccessfully tried to find those witnesses, whereupon the court refused the *259continuance. After the trial one of them was located at Steubenville, Ohio. She made a statement to the effect that she knew of the above-mentioned threat, and that defendant had told her of the killing of his brother by the deceased. This statement was made the basis of a motion for a new trial on the ground of after-discovered evidence, particular stress being laid on the fact that this evidence would have strongly corroborated the defendant, who was the only witness for himself at the trial. The new trial was refused.

    The verdict of the jury was: “Guilty of murder in the first degree, but recommend the mercy of the court.” The other judges who heard the argument of this appeal, are of opinion that the words “but recommend the mercy of the court” may be treated as surplusage, especially as they are intended only to inform the trial judge of the fact that, in the opinion of the jury, there are extenuating circumstances which should relieve the prisoner from the maximum penalty for the offense charged. That is undoubtedly true; but extenuating circumstances are a very vitál factor in a murder case, and not unusually reduce the grade of the offense below that of murder in the first degree. Moreover, it is equally true that such a verdict is generally, if not always, a compromise, entered into for the purpose of overcoming the doubts of one or more of the jury regarding the guilt of the prisoner. But such doubts, if reasonable, especially in a murder case, ought to result either in an acquittal or in a reduction of the grade of the offense; and when we remember how difficult it is for the average juryman to draw a distinction between that which is wilful, deliberate and premeditated, and that which is only wilful and ■ deliberate, it is evident that a verdict, containing a recommendation to mercy, may well have been reached because of a misunderstanding regarding the charge of the court. When a human life is at stake it ought to be made certain that no such misunderstanding exists; and, in my opinion, therefore, the trial judge should have re*260fused to receive the verdict rendered, should have recharged the jury as to the grades of murder, and should have told them that if they believed the defendant was guilty of murder in the first degree they should so find, without any addendum to their verdict.

    It is said in the opinion of the majority that “the defendant’s crippled condition naturally appealed to the sympathy of the jury and may have inspired the recommendation to mercy.” That of course may be true, but there are other possibilities which would at least equally well explain the recommendation. Indeed, the suggestion itself emphasizes the fact that there is a doubt as to what the jury did mean, and as I share in that doubt I dissent from the opinion and judgment entered in this case.

    Since the foregoing was written the cases of Penn v. The State, 62 Miss. 450, and State v. Bennett, 18 S. E. 886 (South Carolina), have been added to the opinion of the majority, as bearing out the claim that the words “but recommend to the mercy of the court” may be treated as surplusage. In the former the verdict was “Guilty as charged in the indictment and plead the mercy of the court.” After that the opinion shows that “The jury was polled and each juror declared the verdict his. This was after the judge had announced that he could show no mercy. Surely if the subject of punishment and a desire to save the prisoner from the penalty of death had occupied the minds of the jurors, some of them would have made it known.” The court there did what the court below here should have done, and the polling was, of course, a verdict without the recommendation.

    In State v. Bennett, supra, the verdict was “guilty with a recommendation to mercy.” The assignment alleged error in not granting a new trial for that reason and also because of an affidavit of a juror as to what he meant by a concurrence in the verdict. It was dismissed because “in a court having jurisdiction only for the correction of errors of law, such recommendations can have *261no effect upon the verdict regularly and solemnly rendered.” As a refusal of a new trial is discretionary and not an ei*ror of law, the assignment of course was had.

    Neither of these cases is controlling here, and neither really affects the argument and conclusion of this dissent.

Document Info

Docket Number: Appeal, No. 72

Judges: Brown, Frazer, Mosceczisker, Simpson, Walling

Filed Date: 7/17/1918

Precedential Status: Precedential

Modified Date: 11/13/2024