DocketNumber: Appeal, 342
Citation Numbers: 144 A. 748, 294 Pa. 573, 1929 Pa. LEXIS 464
Judges: Schaffer, Moschzisker, Frazer, Walling, Simpson, Kephart, Sadler, Schaefer
Filed Date: 11/26/1928
Status: Precedential
Modified Date: 10/19/2024
Argued November 26, 1928. Defendant, found guilty of murder of the first degree, with punishment fixed at life imprisonment, complains that in his trial certain errors were committed and in consequence thereof asks that he be afforded the opportunity to face another jury. He sums up what he alleges to be the harmful matters in three categories in his statement of the questions involved: (1) that he was prejudiced by a question asked him by the trial judge; (2) that the court's charge was erroneous in assuming that the killing was unlawful; in imputing violence to him; in magnifying the case of the Commonwealth and minimizing the defense and in refusing to exclude murder of the first degree from the jury's consideration; and (3) that he was not granted a new trial.
The jury could have found from the disinterested testimony of observing witnesses that defendant, with cool *Page 576 deliberation when eight or ten feet distant from the deceased, fired the shot which struck him in the face, penetrated his brain and killed him.
The two parties to the tragedy, slayer and slain, were employed by a manufacturer of patent medicines, the former as a salesman, the latter as an advertiser of the business, costumed as though he were an American Indian. Appellant came to his employer's establishment about seven o'clock in the evening to collect money which he claimed to be due him and which was more than the manager of the business conceded he had earned. A dispute arose between them in which defendant used violent language to the manager and the latter went outside the building to get a policeman to remove him. The officer who was on the beat acted on the request and directed the defendant to leave the premises and to lay his demand before the Legal Aid Society. Defendant left the vicinity as ordered by the policeman, but something more than an hour later returned, truculently renewed the demand for his money, and was ordered out of the building by Simms, the deceased, who applied to him profane and opprobrious epithets. The defendant finally withdrew from the building, being led therefrom by Pitts, the proprietor of the establishment, who had him by the arm, and followed as far as the doorway by the deceased. The defendant, after leaving the building, proceeded along the pavement for about ten feet with his back to the deceased, suddenly turned, drew a revolver from his coat pocket, levelled it at his victim and shot him in the manner heretofore recited.
The defendant set up that there was a large crowd in front of the building when he came out of it which retarded his exit, that he was endeavoring to escape from the threatened violence of the deceased who had a knife in his hand, which the crowd prevented him from doing, and that he fired the shot in self-defense, not intending to kill his victim but to scare him. The other testimony and the circumstances convincingly show that no crowd *Page 577 was present until after the shooting, that defendant was in no danger from the deceased, who had no weapon on his person except a closed knife in the pocket of an under coat which was inaccessible to him because of his outer clothing, and that the shooting was with a manifest intent to kill as shown by the deliberate firing of the bullet into the head of the deceased.
The defendant's explanation of why he had the loaded revolver in his pocket was an unconvincing one, and the trial judge's question which is complained of — "Where did you usually carry your gun?" — entirely proper under the circumstances. Defendant had said that he was carrying the revolver "this time" for the purpose of having it fixed, without satisfactory explanation, if this were so, as to why he carried it loaded. He also testified that he carried it for protection against robbers. It appeared that just before the shooting he had his hand in his right coat pocket; he admitted that he was carrying the revolver there, obviously the most accessible place in his clothing to quickly reach it. This, together with his testimony clearly indicating he had carried a revolver on other occasions, naturally led to the trial judge's inquiry as to whether that was the place he usually carried it and to his subsequent inquiries as to whether that is where he carried it when he went to have it fixed and as to whether he carried it in other pockets. All these inquiries were proper and pertinent. Those who carry concealed firearms in violation of law must expect, when they commit further crime by their use, that the fullest and most searching inquiry will be made concerning their reasons and intentions in carrying death-dealing weapons.
As to the complaints against the court's charge, they might all be summarily dismissed, as they are without merit. The court did not assume that the killing was unlawful in the sense that appellant argues, as a pre-judgment against the claim of self-defense. What the court was pointing out was that homicide is justifiable *Page 578 when life is taken by authority of law, as the penalty for murder of the first degree, and the language criticized, "If you find, as you will likely find in this case, that Simms' life was not taken by sanction of law," was used in that connection.
We can see nothing in the charge which imputed violence to the defendant beyond the violence he used in the killing. The court with entire propriety instructed that the defendant's duty was not to endeavor to force the payment of the money which he claimed to be due him by the use of violence but to resort to the orderly processes of the law to establish his right to be paid.
Under the fifth assignment it is argued that the following language of the court runs counter to the rule laid down in Com. v. Chapler,
It is also urged upon us that the court's instruction that "One who uses a deadly weapon upon another at some vital part, with the manifest intention to use it upon him, must, in the absence of qualifying facts, be presumed to know that his or her act must be intended to kill and to intend death," is erroneous under Com. v. Chapler, supra, and Com. v. Greene,
In the Greene Case, the trial court had before it the facts that at midnight a man and woman were quarreling at a street corner; pistol shots were heard and a man was seen pointing a revolver and shooting at an object under the awning of the store at the corner. A woman was found on the pavement under the awning who had been shot twice in the head and who died from these wounds. The defendant, tried for the crime, offered no evidence and was convicted of murder of the first degree. The court charged in substance that from the use of a deadly weapon upon a vital part of another the law raises the presumption of an intent to kill "and if he so does, it is on him to answer to the jury aught that he may have in extenuation or qualification to relieve himself *Page 580
from that presumption of murder of the first degree." Commenting upon this feature of the charge, we said: "The only inference to be drawn by the jury from this instruction was that if they found the prisoner had shot the deceased, the burden was upon him to relieve himself from the law'spresumption that his offense was murder of the first degree" and we decided that this was error, that whenever the Commonwealth asks for conviction of murder of the first degree "it must overcome the presumption of second degree after having established a felonious homicide, even if committed by the use of a deadly weapon upon a vital part of the body of the deceased; . . . . . . the jury were unmistakably told that thelaw's presumption was that he was guilty of murder of the first degree." The court was apparently considering the instruction complained of as in effect saying to the jury that murder by the use of a deadly weapon upon a vital part raised apresumption of law that the crime was first degree murder. This strictly speaking would be inaccurate because the presumption raised is not one of law but of fact. "Such a presumption [from the manner of the killing] is an inference of fact [not of law] to be drawn from all the circumstances of the particular case. Wherever the killing is with a deadly weapon, and there is evidence aliunde showing that this was intentionally, deliberately, and unjustifiably used, then the inference . . . . . . is that of an intent to take life, and the case is murder in the first degree. The burden, however, of proving this is on the prosecution. Stripping the case of these incidents however, and supposing a malicious killing be proved, then the inference is of murder of the second degree": Wharton's Criminal Law, 11th ed., vol. 1, section 518. "On the other hand, when a person without authority, and with the appearance of deliberation, shoots another, we infer, as a presumption of fact (not of law) design. There is no petitio principii [begging of the question] on this. We do not say that the killing was designed because it *Page 581
was designed. What we say is this: Taking aim at another with a gun, by a person without authority, and not in public war, and then firing, ordinarily implies an intent to kill; . . . . . . it is incorrect, therefore, to tell a jury that malice, when the weapon is deadly, is a presumption of law. But while telling them that whether there is or is not malice, is a point to be determined by a scrutiny of all the facts in the case, it is proper to remind them that there are certain rules of probable reasoning which it is right for them to keep in view. And one of these rules is that when a responsible person, without authority and under such circumstances as indicate deliberation without apparent provocation or necessity, wounds another in a vital part with a deadly weapon, then malice is to be inferred": Wharton's Criminal Evidence, vol. 2, 10th ed., section 764. In Com. v. Chapler,
In the Chapler Case, the trial court was asked to instruct the jury: "Murder in the first degree is limited to wilful, deliberate and premeditated killing, and the presumption from the use of a deadly weapon rises no higher than murder in the second degree." The opinion states: "The point was a correct expression of the law, and should have been unqualifiedly affirmed. The answer was as follows: 'That may be true where the defendant submits and no testimony is offered, but we have just said to you that the essential difference between murder in the first degree and murder in the second degree, is the intent to kill, and the jury may infer that intent from the use of the deadly weapon, where it was directed at a vital part of the body. With that modification we affirm the point.' The qualification was a virtual denial of the point, and amounted to an instruction that the presumption yielded when it was shown that a deadly weapon was used, directed at a vital part. This, as we have said, is not the law. Under no circumstances, *Page 583
whether the party charged submits or does not submit, does the presumption rise higher than the second degree." In the opinion in the Chapler Case it is said that in Com. v. Greene,
Whether the court in these two cases (Com. v. Chapler,
A careful reading of the charge satisfies us of its fairness and that the criticism that it magnified the prosecution's case and minimized the defense is unwarranted. The trial judge could not properly have excluded from the jury's consideration the question of first degree murder as appellant urges he should have done. The elements of that crime are present. There was no error committed in refusing a new trial.
The assignments are all overruled, the judgment affirmed and the record remitted to the court below that its sentence may be carried out.
Commonwealth. v. Garramone , 307 Pa. 507 ( 1932 )
Commonwealth v. Kluska , 333 Pa. 65 ( 1938 )
Commonwealth v. Weston , 297 Pa. 382 ( 1929 )
Commonwealth v. Del Giorno , 303 Pa. 509 ( 1931 )
Commonwealth v. Samuel Jones , 355 Pa. 522 ( 1946 )
Commonwealth v. Ingram , 440 Pa. 239 ( 1970 )
Commonwealth Ex Rel. Cummins v. Price , 421 Pa. 396 ( 1966 )
Commonwealth v. Gibbs , 1950 Pa. LEXIS 543 ( 1950 )
Commonwealth v. Ballem , 386 Pa. 20 ( 1956 )
Commonwealth v. O'SEARO , 466 Pa. 224 ( 1976 )
Commonwealth v. Moore , 473 Pa. 169 ( 1977 )
Commonwealth v. Wucherer , 351 Pa. 305 ( 1944 )
Commonwealth v. Holley , 358 Pa. 296 ( 1947 )
Commonwealth v. Iacobino , 319 Pa. 65 ( 1935 )
Commonwealth v. Troup , 302 Pa. 246 ( 1930 )
Commonwealth v. Tyrrell , 405 Pa. 210 ( 1961 )
Commonwealth v. Clanton , 395 Pa. 521 ( 1959 )