Commonwealth v. Almeida , 362 Pa. 596 ( 1949 )

I would reverse the judgment and remand the case for a retrial because of fundamental error in the trial court's charge to the jury. The case was submitted on the felony murder theory; yet, the trial judge charged in effect that, even though the fatal shot was not fired by one of the felons but by someone attempting to frustrate the robbery, all the jury would need find in order to hold the defendant guilty of murder was that he was engaged in a robbery at the time of the killing. That instruction inadequately stated the law applicable to the circumstances.

On proof of no more than the perpetration of a felony and an incidental killing, liability for murder can be visited upon the participating felons only where the causation of the homicide is direct, i.e., where one of the felons or one acting in furtherance of the felonious design inflicted the fatal wound.¹ The so-called shield cases do not derogate from this principle. There, the causation requirement for liability is met by instructions to the jury to determine whether the offenders placed their victim in mortal jeopardy for their felonious purpose, e.g., to absorb antagonistic fire or to dissuade antagonists from firing.² On the other hand, as the majority opinion points out, even though a felon or one acting in his aid does not fire the fatal bullet, his conduct may have initiated such a causative chain of events as to render him legally chargeable with having been the causa causans of the homicide, and indictable for murder accordingly. In such circumstances, the felony murder theory supplies the malice necessary to make the killing murder while the proximate (although indirect) causation of the death is capable of fastening on the felon responsibility for the homicide. Sufficiency of the evidence to support a finding of the "chain of events" is, of course, a question of law for a court, but whether the "chain of events" existed unbroken and was the proximate cause of the homicide are questions of fact that only a jury can properly resolve: see Commonwealth v.Kelly, 333 Pa. 280, 287, 288, 4 A.2d 805. Those important factual inquiries were not submitted in the instant case. Causation was assumed by the learned trial judge and all that was left to the jury to determine, in order to hold the defendant guilty of murder, was that he was engaged in a "holdup" at the time of the killing notwithstanding there was evidence that someone other than the felons had fired the fatal bullet.

The cognate instructions of the learned trial judge to the jury were that "It makes no difference who fired that [fatal] shot. If that shot were fired by anyone, even anyone removed from these three participants, and that shot was fired in the perpetration of a robbery, members of the jury, that is murder; that is murder in the first degree." Earlier, counsel for the defendant having told the jury, during his closing address, that he would ask the court to instruct them that, if they should find that none of the robbers had fired the fatal shot, it would not be first degree murder, the trial judge, at once and in the presence and hearing of the jury, said that he would charge the jury that ". . . it makes no difference who fired the shot, even if a shot was fired by Mrs. Ingling [the innocent victim's wife], it was still murder."

That the foregoing fully and fairly reflects the substance and intent of the trial court's instructions to the jury in pertinent relation is further confirmed by what the learned trial judge said in the opinion for the court en banc (one judge dissenting) in disposing of the defendant's motion for a new trial. In treating therein with the defendant's contention that he could not be held guilty of murder if the jury should find that one of the resisting policemen fired the fatal bullet, the opinion for the court en banc states that "Whatever doubts may have existed on this question have been unequivocally settled by the recent decision in Commonwealth v. Moyer, 357 Pa. 181 (1947), which stands for the proposition that all who participate in a robbery, are guilty of first degree murder if someone is killed in the course of the crime even though the fatal bullet is fired by some third person 'in an attempt by him to frustrate the attempted robbery.' " I do not think that this Court's pronouncement in the Moyer case, supra, should be taken as justifying the broad and unrestricted ground of liability upon which the learned trial judge submitted this case to the jury. Indeed, this Court's opinion in the instant case does not warrant a finding of murder under the felony murder theory for a killing not actually committed by the felons or their accomplices except upon a showing and adjudication of causal connection between the perpetrators of the felony and the homicide.

The only factual issue submitted to the jury in this case was whether the defendant was engaged in a "holdup" at the time Mr. Ingling was killed. Thus, the learned trial judge's charge in this connection was as follows: "Was this a holdup? That is for you to say from all these facts. Is this a holdup? If you have any reasonable doubt about the fact that this was a holdup, you must give this defendant the benefit of it and say, not guilty, but the doubt must be reasonable. If you have no reasonable doubt about it, then your verdict should be guilty of murder in the first degree", — virtually a directed verdict of guilt in the circumstances. It is further evident from the instruction, just quoted, that the learned trial judge did not reckon with the necessity of the jury's finding causation. Else, why did he instruct the jury that, unless they found that there was a "holdup", they would have to acquit the defendant? Failure to find a "holdup" would, of course, have eliminated the presence of malice and, thus, have prevented the homicide from being deemed murder. But, the causation, just the same, would be no less efficient to convict the defendant of manslaughter. See comment in the majority opinion on the jury's verdict in Letnerv. State, 299 S.W. 1049.

The facts upon which the majority opinion relies, in adjudging that indirect causation was present as a matter of law, are, of course, in the record but, unfortunately, the issue of causation was not submitted to the jury and, therefore, cannot be taken as having been competently established as a conclusive finding. Whether the acts of Almeida and his confederates³ were sufficient to constitute the proximate cause of the killing was a question of law but whether they did constitute the proximate cause was a question of fact for the jury. There are no undisputed facts in this case so far as the defendant is concerned. He did not take the stand to testify; and no confession or admission against interest was read into the record against him. His plea of "not guilty" put in issue every scrap of evidence adduced by the Commonwealth; and the duty of resolving those issues was upon the jury and not the court.

The jury should have been instructed that, in order to find the defendant guilty of murder, it was not only necessary for them to find the killing to have been coincidental with the perpetration of a felony in which the defendant was at the time participating but that they would also have to find that the fatal shot was fired by one of the felons or, if not fired by one of them, that the conduct of the defendant or his accomplices set in motion a chain of events among whose reasonably foreseeable consequences was a killing such as actually occurred. The only way that the question of the defendant's guilt can any longer be properly adjudicated upon adequate instructions to the jury is by the medium of a new trial for the granting of which there is ample precedent. See Commonwealth v. Kelly, supra. In the Kelly case, the defendant was convicted of a felony murder and was sentenced to death but the judgment of guilt was reversed and the case sent back for a new trial because the trial judge had failed to submit to the jury whether there had been any break in the chain of events and whether the homicidal act was connected with the initial maliciously motivated offense. What the present Chief Justice said (at p. 288 of 333 Pa.) in the opinion for this Court, upon sending the Kelly case back for retrial, is peculiarly apposite, — "When the indictment charges that a murder was committed in the perpetration or attempted perpetration of any of the enumerated felonies, thejury must first decide whether the homicidal act was connected with the felony or was there 'a break in the chain of events.' The court below erred in taking it upon itself to decide that basic question." (Emphasis the author's.)

¹ See Commonwealth v. Campbell, 89 Mass. (7 Allen) 541;Commonwealth v. Moore, 121 Ky. 97, 88 S.W. 1085; State v.Oxendine, 187 N.C. 658, 122 S.E. 568; People v. Garippo,292 Ill. 293, 127 N.E. 75. Cf. Butler v. People, 125 Ill. 641,18 N.E. 338; State v. Majors, 237 S.W. (Mo.) 486; People v. Udwin,254 N.Y. 255, 172 N.E. 489; People v. Ferlin, 265 P. (Cal.) 230; cf. also Commonwealth v. Mellor, 294 Pa. 339, 342,144 A. 534; Commonwealth v. Thompson, 321 Pa. 327, 330, 184 A. 97.

² See Taylor v. State, 41 Tex.Crim. R., 55 S.W. 961; Keatonv. State, 41 Tex.Crim. R., 57 S.W. 1125; Wilson v. State, 68 S.W.2d (Ark.) 100.

³ Hough, one of the felons, plead guilty to the charge of murder. The serious question arising out of the Almeida trial was not present in that case: cf. Commonwealth v. Hough,358 Pa. 247, 56 A.2d 84.