Commonwealth v. Morrison

Opinion by

Mr. Chief Justice Sterrett,

This appeal by the prisoner is from the sentence of the law imposed on him by the court below for murder of the first degree, of which, after a fair and impartial trial, he was duly found guilty.

The first assignment of error alleges that “the ingredients necessary to constitute murder of the first degree do not exist in this case.” This specification is under the 2d section of the Act of February 15, 1870, P. L. 15, which requires us, in all cases of murder of the first degree, “to review both tiñe law and the evidence, and to determine whether the ingredients necessary to constitute murder of the first degree shall have been proven to exist.” It thus becomes our duty to see whether competent evidence was introduced which, if believed by the jury, would furnish the elements or “ingredients” of that grade of murder. Whether the jury should or should not have believed and relied on the evidence is not for us to determine. That question was considered and disposed of in the proper forum, on the motion for a new trial: Grant v. Com., 71 Pa. 495.

In this case, we have to deal only with that kind of murder of the first degree which is described in our statute as “ wilful, deliberate and premeditated killing.” No other kind of that grade is even suggested in the record. A consideration of the evidence, as well as the law, applicable to that grade of murder, is therefore required in disposing of the first specification.

The corpus delicti and the fact, that the mortal wound— which speedily caused the-death of Harry Dougherty—was inflicted by the' prisoner, were both so clearly and conclusively established by the evidence that there could be no doubt as to either.

The facts and circumstances which led up to the homicide are substantially these: The prisoner and Dougherty met for the first time at the stable of the hotel in Belleville, Mifflin county. In an effort to find some one to join him in a game of “poker ” the prisoner spoke to Dougherty, who at first refused to play that game, but afterwards agreed to “ match dollars ” with him. This soon led to a dispute, and an altercation ensued which soon ended in blows. Dougherty finally knocked the prisoner down.

Charles Wells, an eyewitness to the transaction, testified that after Dougherty “ hit him (the prisoner) he walked back to the stable door and leaned back against it; ” that the prisoner “ got up from where he was knocked down and came up about half way to Mr. Dougherty. That was about six feet, I suppose. Then he turned around and went clear back to where he was knocked down, clear back to the buggy wheel. He then took and turned around and came clear back up to Mr. Dougherty. He had his right arm behind his back. Pie had his left arm on Mr. Dougherty’s shoulder. Then Mr. Morrison fetched his right arm from behind his back and cut Mr. Dougherty.”

That witness was fully corroborated by several others, one of whom, Charles Young, testified that when the prisoner was knocked down, “ he laid for three or four minutes before he got up, and looked around, and he was stunned. He looked around, before he came up to Dougherty, to see where he was, and when he sighted him he walked right up to him. He asked Dougherty what hé hit him for, and then he just laid his left hand right on his shoulder, and cut him with his right.”

Another witness, Albert S. Gibbony, testified: “ I saw Morrison coming out of the crowd. He opened a knife and put it behind his back, walked through the crowd, walked up to the man that was Dougherty and stabbed him. ... I saw him make a lunge at him.”

Shannon Shook also testified that after the prisoner was knocked down “ he turned around and came back to the stable door where Dougherty was then standing. He walked up to Mr. Dougherty, .... made a run towards him and threw his arm over his shoulder and stabbed him,” with “ his right arm, the knife .... He passed me going up to Dougherty.” The witness further added that he then saw the knife in his hand; “ He had it behind his back in his hand.”

The foregoing testimony was further corroborated by the witnesses Hembaugh, Fleming and Sankey. The last named witness testified that, in reply to a question as to why he killed the deceased, the prisoner answered: “He struck me in the mouth.” In this connection it may be added that the prisoner testified in substance that the stabbing was in self-defense.

Much other evidence, tending to prove that the mortal wound in question was inflicted by the prisoner substantially in the manner and under the circumstances testified to by the witnesses, might be referred- to, but it is unnecessary. The evidence introduced and relied on by the commonwealth was abundantly sufficient to carry the case to the jury on all the questions of fact submitted to them by the learned president of the oyer and terminer: Commonwealth v. Drum, 58 Pa. 16; Lynch v. Commonwealth, 77 Pa. 207; Lanahan v. Commonwealth, 84 Pa. 80; Commonwealth v. Buccieri, 158 Pa. 535; Commonwealth v. Breyessee, 160 Pa. 456.

The learned judge’s instructions to the jury, including his definitions of homicide, murder at common law, murder of the first and murder of the second degree under our statute, manslaughter, etc., were clear, impartial, comprehensive and free from any substantial error. Thirty requests for instructions, embracing every phase of the case, and the principles of law applicable thereto, were submitted by the prisoner’s counsel, and all of them, except one, were affirmed by the court. Its answer to that request has been accepted by counsel as containing nothing upon which to base a specification of error.

In affirming the prisoner’s first seven, twelfth and twenty-seventh requests the court instructed the jury, in the language thereof, thus:

“ 1. If the intent is not to kill, but to do great bodily harm, even if there be malice, deliberation and premeditation, the offense will not rise higher in grade than murder of the second degree.

“ 2. A reasonable doubt as to the existence of malice is sufficient to reduce the grade of homicide to voluntary manslaughter.

“ S. To convict the prisoner of murder of the first degree, the jury must find he committed wilful, deliberate and premeditated murder, with malice aforethought, and each of these words must be found to apply to the crime.

“4. While the law presumes every unlawful killing with malice, express or implied, to be murder, that presumption rises no higher than murder at common law, and murder of the second degree, and the burden is on the commonwealth to show by the testimony that it is murder of the first degree under our statute.

“ 5. The burden of proof never shifts, but remains with the commonwealth throughout to prove beyond a reasonable doubt each and every, all and singular, the material averments in the indictment. If all of this is not clearly and satisfactorily shown, beyond a reasonable doubt, the jury should acquit.

“6. Manslaughter is defined to be the unlawful killing of another, without malice, express or implied, which may be voluntary, in a sudden heat or quarrel, or involuntary, but in the commission of an unlawful act. If the jury find such offense, beyond all reasonable doubt, the verdict should be guilty of manslaughter.

“ 7. It is necessary, in order to convict the prisoner of the crime charged in the indictment, or of any degree of murder or manslaughter, upon the evidence of circumstances, that such circumstances all concur to show that the defendant committed such crime, and that such circumstances are all inconsistent with any other rational conclusion. . . .

“ 12. In this case, the law raises no presumption against the prisoner, but every presumption of the law is in favor of his innocence ; and, in order to convict him of the crime alleged in the indictment, or of any lesser crime included in it, every material fact necessary to constitute such crime must be proved beyond a reasonable doubt, upon any single fact or element necessary to constitute the crime; and it is your duty to give the prisoner the benefit of such doubt and acquit him. . . .

“ 27. If you find that the deceased, at or before the time the fatal blow was struck, was advancing towards the defendant in a menacing manner, or was striking at the defendant, or striking the defendant, and if the defendant at that time had reason to believe, and did believe, that he was in imminent danger of death or great bodily harm, then the defendant would be justified in such striking.”

Acting under these and the fuller instructions contained in the learned judge’s charge and affirmative answers to the prisoner’s remaining requests, the jury doubtless had a clear conception of their duty in applying the law to the facts as they found them from the evidence; and, in declaring by their verdict that the prisoner was “ guilty of murder of the first degree,” they must have found all the facts or “ ingredients ” necessary to constitute that high felony. In other words, they must have found that the killing was not done in justifiable self-defense, nor in a sudden transport or heat of passion generated by adequate provocation, but that it was done wilfully and maliciously, and with intent to take life. These conclusions were not unwarranted by the evidence as to what occurred at and about the time the stabbing was done, and also as to the nature and character of the wound and the manner in which it was inflicted. As shown by the evidence, after the prisoner was knocked down and after Dougherty walked away from him, he appears to have opened his knife, and thus armed with the open knife in his right hand behind his back he approached Dougherty, who was still standing at the stable door, laid his hand on his shoulder, asked him why he hit him, and without further warning drew the knife from behind his back, plunged into Dougherty’s left thigh—nearly severing the femoral artery—and drew it across his abdomen. According to the physician’s testimony, the wound was ten inches long, about five inches of it in the thigh, and about the same length across the abdomen, deep enough in the thigh to partially sever the femoral artery, and deep enough in the abdomen to reach the peritoneum. The mortal wound thus inflicted was in a vital part of the body, and death speedily ensued. It has been said by this court that, “ He who uses upon the person of another, at some vital part, with manifest intention to use it upon him, a deadly weapon, such as an ax, a gun or a knife, must, in the absence of qualifying circumstances, be presumed to know that it is likely to kill, and, knowing this, must be presumed to intend the death which is the probable and ordinary consequence of such an act: ” Lanahan v. Commonwealth, 84 Pa. 80, 86.

In view of what has been said, the first specification of error cannot be sustained.

A careful review of the law and the evidence has satisfied us that there was properly before the jury in this case competent evidence tending to prove all the facts or “ ingredients ” necessary to constitute the crime of murder of the first degree. That evidence, together with all the other evidence in the case, was rightly before the jury for their exclusive consideration in determining the facts submitted to them. The action of the trial court in denying the prisoner’s motion for a new trial shows that it was satisfied with the jury’s findings of fact, as well as their application of the law to the facts thus established.

The subjects of complaint in the second to the eighth specifications, inclusive, are to the charge of the court, mainly on the grounds that it was inadequate, not sufficiently specific, etc. We have already had occasion to refer at some length to the evidence, charge of the court, etc. As to the charge, we characterized it as “ clear, impartial, comprehensive and free from substantial error; ” and we may now add that it is neither inadequate, nor lacking in sufficient precision. The thirty requests for instructions submitted by the prisoner’s counsel, nine of which are quoted above, were doubtless intended to cover every phase of the case as presented by the evidence. If additional instructions were required or desired they should have been requested: Commonwealth v. Zappe, 153 Pa. 498; Commonwealth v. Boschino, 176 Pa. 115. We find nothing in the record that would justify us in sustaining any of these seven specifications, nor do we think either of them requires further notice.

The ninth, tenth and eleventh specifications relate to single sentences taken from the general charge, and depend largely on the punctuation of the stenographer to sustain the objections of the prisoner’s counsel. Considered in connection with the context and the charge generally as delivered by the court, they are free from error. In his opinion refusing the motion for a new trial the learned judge refers to and satisfactorily explains the stenographer’s errors of punctuation.

It may be suggested, in passing, that such errors should be corrected by the court below before the record is certified to us.

There was no reversible error in not offering in evidence the garment referred to in the twelfth specification. There is nothing to indicate that the prisoner was in any way prejudiced by the commonwealth’s omission; nor does it appear that it was not equally in the power of the prisoner to put it in evidence himself, if he so desired.

There is no merit in the thirteenth specification. What was done for the comfort and convenience of jurors who were temporarily indisposed during the trial was a matter resting in the sound discretion of the court, and there is not a particle of evidence to show any abuse of that discretion.

The fourteenth specification cannot be sustained. The clerical error of the court’s officer in writing the wrong number of the term in recording the sentence did not in any way injure the prisoner.

In view of what the learned trial judge has said in his opinion denying the motion for a new trial, further comment on the specifications of error is not required. The case appears to have been carefully and ably tried on the part of the court as well as counsel. The responsibility of determining the facts and applying to them the law, as laid down by the court, devolved on the jury. Under the instructions given to them it-was their exclusive duty to weigh and consider all the evidence, and determine whether the prisoner was guilty of murder of the first degree, or of murder of the second degree, or of manslaughter, or not guilty of any crime included in the indictment. That duty was fairly and forcibly enjoined upon them by the learned trial judge, in the concluding paragraph of his charge. That it was faithfully and conscientiously performed we have no reason to doubt.

We have given to this case that careful consideration which, in view of the gravity of the judgment, its importance to the prisoner demands, and the result is that we find no error in the record that would justify us hr disturbing the verdict or the judgment entered thereon.

The judgment is therefore affirmed, and it is ordered that the record be remitted to the court below for the purpose of execution.