Commonwealth v. Bolish, Appellant.
Supreme Court of Pennsylvania
April 19, 1955
John W. Bour, with him Raymond Bialkowski, for appellant.
Ralph P. Needle, Assistant District Attorney, with him Carlon M. O‘Malley, District Attorney, and William J. Kearney, Assistant District Attorney, for appellee.
OPINION BY MR. JUSTICE BELL, April 19, 1955:
Defendant was indicted for the murder of Robert J. Flynn. The jury convicted him of murder in the first degree and imposed the sentence of death. The Commonwealth contended that Flynn‘s death occurred as the result of arson and that his death was a felony
Facts
An explosion followed by fire occurred in the early morning of July 22, 1953, in the house owned by Mrs. Mary Torti, the premises being numbered 115 Reeves Street in Dunmore Borough, Lackawanna County, Pennsylvania. Mrs. Torti‘s house was a two story house consisting of a kitchen and living room on the first floor and two bedrooms and a bathroom on the second floor. The house had been vacant for several months and at the time of the explosion there was no furniture in the house.
The explosion was heard, the flash was seen, and the fire was discovered immediately by neighbors. Firemen arrived about three minutes after the explosion. The interior was filled with intense heat, the woodwork and the walls were scorched and burned, and fire was playing around the screen of the front door. An electrical hot plate and an electric cord about 3 feet long were found on the kitchen floor. The electricity in the home was turned on. The fire originated on or near the hot plate. A pad was found near the hot plate which contained the odor of kerosene (the importance of which will hereinafter appear) and there was some broken glass nearby which appeared to be parts of a glass jar in which had been placed some volatile material. There was also an odor of gasoline in the kitchen. The fire was caused (according to the Commonwealth‘s experts) by an explosion of a volatile material placed
Flynn appeared about 4 o‘clock on the morning of the fire (July 22nd) at the Ronda Coal Company office in Dunmore, badly burned. He sought water from the night watchman. He died 19 hours later as a result of burns. The Commonwealth established a trail of flesh, fragments of material and discarded shoes from the Torti house to within approximately 150 feet of the Ronda Coal Company office. Dr. Willard testified that in her opinion the hair from the venetian blind which was found in the Torti house on the window ledge came from the head of Flynn. The Commonwealth also proved that the discarded shoes belonged to Flynn. The evidence was sufficient to prove beyond a reasonable doubt that Flynn was in the Torti house when the fire and explosion took place in the early morning of July 22, 1953, and that he died as a result of the Torti fire.
There was no direct evidence to prove that defendant committed the arson, nor, as we have seen, was there any direct evidence that Flynn was present in the Torti house at the time of the explosion and fire. The defendant‘s connection with and responsibility for the arson can be thus summarized:
Mary Torti, the owner of the house, and her son-in-law, Michael Sika, furnished most of the money for the business of Louis Serrian and Stella Torti, daughter of Mary Torti. Their business owed debts of approximately $9,000. Serrian attempted to place fire in
Several weeks prior to the fire defendant, accompanied by two people, one of whom was a witness for the Commonwealth, stopped his car in back of the Torti house and pointed it out to the witness. The day before the fire, namely, July 21, defendant purchased from the Rafferty Gas Station a gallon of kerosene, which he took away in a jug that afternoon at 2:30. The bottom of the jug was covered with grease. At 8:30 the same evening defendant met Commonwealth‘s witness Maddon and borrowed his car. At the time of the fire defendant had not returned the car.
Robert Flynn, aged 17, had been frequently and very generously befriended by defendant. They met at 11 o‘clock P.M. on July 21st, approximately 2 or 2 1/2 hours before the fire; and around 12 midnight they left a restaurant together and drove off in defendant‘s (Maddon‘s) automobile. Immediately after the explosion and fire, neighbors saw a car being driven rapidly away from the Torti house. The car was subsequently identified as Maddon‘s car. At the time of the fire a man was seen on the porch of the Torti house, but could not be identified. After the fire, at about 2:45 A.M., Maddon met defendant in the vicinity of the Court House benches on Adams Avenue and gave him back the keys to his car which he had left on another street.
Defendant at this time said to Maddon, “By the way, Butchie [Flynn] borrowed one of your shirts“; and “Flynn‘s shirt is in your car.”
The Commonwealth proved that the shirt which was burned and was found along the trail taken by Flynn
Maddon testified that the day after the fire defendant said to him, “Don‘t tell them you loaned me the car. Tell them you loaned it to someone else. Tell them somebody stole it.” Defendant twice denied to others that he had borrowed Maddon‘s car. Maddon also testified that when he met defendant at 3 o‘clock in the afternoon of July 22nd he asked him about Flynn, to which defendant replied, “Yes, Butchie got himself into a little trouble.” Maddon also testified that he told defendant he had found Butchie‘s (Flynn‘s) shirt and defendant then said: “Throw it away, get rid of it.” Maddon then showed defendant a key which he found in Flynn‘s shirt and defendant said, “Give it to me” and took it. The key, which was a twin key for Mary Torti‘s house, was later found in the sewer at the American Auto Store corner where defendant had left Maddon.
Incidentally, defendant did not take the witness stand to deny any of the Commonwealth‘s evidence or explain or justify his statements or his conduct or his whereabouts at the time of the fire.
The jury could properly have believed (a) that defendant lied about Flynn, lied about Maddon‘s automobile, lied about his whereabouts the night before the
Arson
The jury brought in a verdict of guilty of murder in the first degree.
If defendant in the instant case was guilty of murder it was murder committed in the perpetration of or attempt to perpetrate arson.
Prior to the Criminal Penal Code of 1860 the authorities held that the arson, rape, robbery and burglary specified in the murder section of the Criminal Code meant common law arson, rape, robbery and burglary; and “At common law, arson consists of the willful and malicious burning of the dwelling house of another: 3 Inst. 66; 1 Hale, P.C. 566; 1 Hawk. P.C. (8th Ed.) 137; 4 Bl. Comm. 220; 2 East, P.C. 1015.“: Commonwealth v. Bruno, 316 Pa. 394, 400, 175 A. 518.
Since the
Circumstantial Evidence
There was, we repeat, no direct evidence of arson or identity or murder. Proof by eye witnesses or direct evidence of the corpus delicti or of identity or of the commission by the defendant of the crime charged is not necessary. “. . . It is clearly settled that a man may be convicted on circumstantial evidence alone, and a criminal intent may be inferred by the jury from facts and circumstances which are of such a nature as to prove defendant‘s guilt beyond a reasonable doubt:
The jury, the trial Judge and the Court en banc were convinced that the Commonwealth proved beyond a reasonable doubt that the defendant was guilty of arson. Judge ROBINSON, who dissented on the ground of felony murder, said: “I agree with the majority that the evidence established the guilt of Bolish [defendant] for the crime of arson beyond a reasonable doubt.”
Murder
We now come to the main contention of the defendant, viz.: the killing which resulted from this arson could not amount to a so-called felony murder and consequently was not murder under the law of Pennsylvania. Expressed another way, the so-called felony murder doctrine does not apply to the death of an accomplice which resulted from the accomplice‘s own act in the perpetration of arson. That raises a very important question which has never been specifically decided by this Court, although there are a number of closely analogous cases. Defendant assumes (a) that Flynn was an accomplice and (b) actually set the fire which caused his own death, and based on this premise argues that Flynn‘s act was an intervening and superseding force which relieved defendant from the killing.
Murder has never been defined by Statute in Pennsylvania; it has often been said that it is “common law murder“. Cf. Commonwealth v. Exler, 243 Pa. 155, 89 A. 968; Commonwealth v. Kelly, 333 Pa. 280, 4 A. 2d 805; Commonwealth v. Dorazio, 365 Pa. 291, 74 A. 2d 125. It would probably be accurate to say that our idea,
The theory of the common law was that anyone who committed a common law felony* possessed legal malice; and where a killing naturally resulted therein or therefrom, even though the killing was unintentional or accidental, the legal malice was carried over from the original felony and the original felon was guilty of murder.
Murder in Pennsylvania was first authoritatively defined in the famous case of Commonwealth v. Drum, 58 Pa. 9, 15.** “Murder“, Mr. Justice STEARNE aptly said, in Commonwealth v. Buzard, 365 Pa. 511, 515, 518, 76 A. 2d 394, “is defined as an unlawful killing of another with malice aforethought, express or implied.” The legislature divided murder into two classifications, murder in the first degree and murder in the second degree; and provided that (1) all murder perpetrated by poison or lying in wait, or by any other kind of wilful, deliberate or premeditated killing, or any murder which shall be committed in the perpetration of or attempt to perpetrate certain specified felonies, is murder in the first degree and (2) every other kind of murder is murder in the second degree: Act of 1939, June 24, supra.
Malice express or implied is the criterion and absolutely essential ingredient of murder. Malice in its
To summarize: If there was an unlawful killing with (legal) malice, express or implied, that will constitute murder even though there was no intent to injure or kill the particular person who was killed and even though his death was unintentional or accidental: cf. Commonwealth v. Almeida, 362 Pa. 596, 68 A. 2d 595; Commonwealth v. Moyer and Commonwealth v. Byron, 357 Pa. 181, 53 A. 2d 736; Commonwealth v. Guida, 341 Pa. 305, 19 A. 2d 98; Commonwealth v. McLaughlin, 293 Pa. 218, 142 A. 213; Commonwealth v. Robb, 284 Pa. 99, 130 A. 302; Commonwealth v. Lowry, 374 Pa. 594, 98 A. 2d 733; Commonwealth v. Buzard, 365 Pa. 511, 76 A. 2d 394; Commonwealth v. Dorazio, 365 Pa. 291, 74 A. 2d 125; Commonwealth v. Sterling, 314 Pa. 76, 170 A. 258; Commonwealth v. Lessner, 274 Pa. 108, 118 A. 24; Commonwealth v. Exler, 243 Pa. 155, 89 A. 968; Commonwealth v. Drum, 58 Pa. 9; 4 Blackstone, Commentaries 192-193; 40 C.J.S. §13 p. 857, §20 p. 866, §21 p. 868; Wharton, Homicide §2 p. 2, §92 p. 112 (3rd ed. 1907); Maurer, Pennsylvania Criminal Law: Murder §3582 p. 915 et seq., §3689 p. 953 et seq.; 1 Warren, Homicide §74 (Perm. ed. 1938); Clark & Marshall, Crimes §245 (4th ed. 1940).
In Commonwealth v. Guida, 341 Pa., supra, the Court said (page 308): “. . . We have held again and again that an unintentional homicide in the commission or attempted commission of a felony such as rape, burglary, or robbery was murder at common law: * ”
In Commonwealth v. Moyer and Byron, 357 Pa. 181, 53 A. 2d 736, defendants attempted to hold up a gas station operated by Earl Shank. Shank and the defendants exchanged shots; one of Shank‘s shots accidentally struck and killed a gasoline attendant. Defendant‘s conviction of murder in the first degree with sentence of death was sustained by this Court. The Court in its opinion said (pages 190-191): “. . . Blackstone, Book IV, section 199, says that ‘The grand criterion which now distinguishes murder from other killing’ is that malice which is ‘the dictate of a wicked
“‘The doctrine that when malice is the mainspring of a criminal act the actor will be held responsible for any consequence of his act though it was not the one intended was recognized centuries ago when it was held that, quoting from Blackstone, Book IV, page 1599, section 201, “if one shoots at A and misses him, but kills B, this is murder, because of the previous felonious intent, which the law transfers from one to the other.” (Italics supplied)” . . .
How far Pennsylvania has gone in holding that each of the persons who participated in a criminal act such as robbery is guilty for all the acts of his confederates in furtherance of the common design, is strikingly apparent from Commonwealth v. Doris, 287 Pa. 547, 135 A. 313. In that case one of the robbers killed
In Clark and Marshall on Crimes (4th Ed.) page 298, the law is thus stated: “§245. Homicide in the Commission of a Felony. (a) In General.—At common law, malice was implied as a matter of law in every case of homicide while engaged in the commission of some other felony, and such a killing was murder whether death was intended or not. The mere fact that the party was engaged in the commission of a felony was regarded as sufficient to apply the element of malice.
“On this principle, it was murder at common law unintentionally to kill another in committing, or attempting to commit, burglary, arson, rape, robbery, or larceny.
“The doctrine has repeatedly been recognized and applied in this country, and is to be regarded as still in force, except where it has been expressly abrogated by statute.”
In Wharton on Homicide, (3rd Ed.) page 175, the law is thus stated: “These rules apply to maliciously setting fire to a building causing the death of a person therein, though unintended, such killing being murder in the first degree. And a homicide perpetrated in the attempt to commit a rape is murder in the first degree, whether the killing was by accident or design; and so with a killing occurring in the perpetration of a robbery.”
. . . Commonwealth v. Almeida, 362 Pa., supra, is on its facts so analogous to the instant case and in principle so directly controlling that we shall quote from that exhaustive opinion at some length. That case decided
“. . . it makes no difference who fired the shot, even if a shot was fired by Mrs. Ingling [a passerby who was the wife of the man who was shot and killed] it was murder. . . . If that [fatal] shot were fired by anyone, even anyone removed from these three participants, and that shot was fired in the perpetration of a robbery, . . . that is murder; that is murder in the first degree.”
This Court in its opinion said, inter alia: “The legal question presented and decided in the [Commonwealth v.] Moyer-Byron case was precisely the legal question raised in the instant case; to wit, when men who are feloniously shot at by robbers return their fire in self-defense and a third person is killed by a shot fired by the defenders, are the robbers whose felonious action caused the shooting guilty of murder? In the Moyer-Byron case this Court after a thorough discussion of that question decided that under the facts of that case, ‘The Moyer-Byron felonious invasion of the Shank gas station on July 13, 1946, was likewise the proximate cause of the resultant fatality.’ (191 of 357 Pa.) . . . Our decision in the Moyer-Byron case was an application of the long established principle that he whose felonious act is the proximate cause of another‘s death is criminally responsible for that death . . . ‘Though there is an active force intervening after defendant‘s act, the result will nevertheless be proximate
“Justice HOLMES in his book on ‘The Common Law,’ (36th Ed.) pp. 56 and 57, said: Acts should be judged by their tendency under the known circumstances, not by the actual intent which accompanies them. . . . ‘the object of the law is to prevent human life being endangered or taken. . . . the law requires [men] at their peril to know the teachings of common experience, just as it requires them to know the law. . . . the test of murder is the degree of danger to life attending the act under the known circumstances of the case.’
“. . . The felonious acts of the robbers in firing shots at the policemen, well knowing that their fire would be returned, as it should have been, was the proximate cause of Officer Ingling‘s death.
“The doctrine of proximate cause in criminal cases was applied by the Supreme Court of Tennessee in Letner v. State, 299 S.W. 1049 (1927). The facts were that three youths were crossing a river in a boat at a dangerous point. When the boat was about in the middle of the river someone standing above the western bank shot into the water about six feet from the boat. A second shot hit the water nearer the boat whereupon one of the youths jumped out causing the boat to capsize as a result of which the two other occupants were drowned. The man who fired the shot was indicted for murder. The defense contended that the death of the two youths was caused by the capsizing of the boat by the third occupant and that this act constituted a supervening cause. The Court held that the defendant could not avoid the consequences of his wrongful act by relying on a supervening cause which resulted naturally and proximately from that act. The Court said: ‘. . . in the instant case the wrongful act of the defendant; that is, firing at or near the boys in the
“In State v. Leopold, 110 Conn. 55, 147 A. 118, 121,* the defendant and another were tried for murder of two boys, children of a tenant, by willfully burning a building. Defendant employed one Weiss to set fire to the building for the purpose of collecting the insurance. . . .
“The two boys of the tenant perished in the fire. It appeared that the boys either remained in the building, or when on the way out were sent back by their father to recover some property and became trapped. The defendant requested the court to charge that ‘if they [the boys] had a reasonable opportunity to escape from the burning building and would have escaped but for their own conduct or the act of their father in directing them to return, the accused could not be found guilty of causing their death.’ This instruction the court refused and told the jury that ‘the negligence of the victims of a crime did not diminish or nullify the crime and that even if they found the claim as to the conduct of these boys to be true the accused would not thereby be excused.’
“The Supreme Court of Connecticut said: ‘Every person is held to be responsible for the natural consequences of his acts, and if he commits a felonious act and death follows, it does not alter its nature or diminish its criminality to prove that other causes cooperated to produce that result. . . . If the death of these boys resulted in a natural sequence from the setting of the building on fire, even though their conduct contributed to or was the immediate cause of it, the accused would be responsible; and the effort of a person
. . .
“. . . ‘Defendant‘s act or omission need not be the immediate cause of the death; he is responsible if the direct cause results naturally from his conduct.’
. . .
“Under neither the common law nor our statute is an accidental killing murder. It is not even a felony. Yet this Court has uniformly held that an accidental killing in the perpetration of or the attempt to perpetrate a robbery or burglary or any other of the enumerated felonies is murder in the first degree. The reason is that any person committing or attempting to commit, any of these major felonies is motivated by malice and when the killing of a human being directly results, even though not intended, from his malicious act, it is murder because malice, the essential element of murder, is present. The Felon‘s malicious act in perpetrating or attempting to perpetrate, his planned major crime is justly regarded by the law as the causative antecedent of the homicide. In cases of this kind society puts its punitive hand on the person responsible for the legally blamable cause. This doctrine is authoritatively recognized in the law.
. . .
“What Justice CARDOZO said is applicable here: ‘when they [judges] are called upon to say how far existing rules are to be extended or restricted, they must let the welfare of society fix the path, its direction and its distance. . . .
. . .
Courts have a duty, especially in these days when crime has become so prevalent, to see that the lives, the property and the rights of law-abiding people are protected and consequently must delicately balance the scales of justice so that the rights of the public are protected equally with those of persons accused of crime. An arsonist is bound to know the perils and natural results of a fire which are reasonably foreseeable according to the common experience of mankind, and in particular to know that an occupant of the building set on fire, an accomplice, a fireman and the public who are likely to come to watch the fire, may die in or as a natural proximate result of the fire. The attempt of an officer or person to put out the fire, or to rescue people or property therein, or the attempt of any person to escape from the burning building does not constitute in legal contemplation a superseding cause which is sufficient to relieve the arsonist from murder in the first degree. In reason, logic and principle we can see no valid distinction between those cases and a case where an accomplice is killed while setting fire to a house (or building) or attempting to escape therefrom,—the latter‘s death is just as readily foreseeable as is the death of an owner who attempts to escape or to rescue lives or property from the building. In the interest and for the protection of society a knave who procures another to perpetrate an unlawful act which is dangerous to human life must be held legally responsible for any death which is a natural result of such act.
In the light of the foregoing principles we turn to defendant‘s next contention, which is, that “The Trial Judge erred in not instructing the jury that they had to acquit if they found that Flynn was the substantial or proximate cause of his own death.” Even if it be assumed that Flynn was an accomplice, there was, as we have seen, no evidence in this case which was legally sufficient to make any act of Flynn a superseding cause and thus relieve defendant from the natural consequences of his malicious, felonious arson. To charge on the complicated subject of proximate or in
The defendant further complains that the trial Judge charged the jury that if Flynn was the substantial cause of his own death his act of killing himself superseded Bolish‘s acts and broke the chain of events and even though Bolish was a felon they would have the right to find Bolish not guilty of murder. This charge was far more favorable to defendant than he was entitled to. It would have been wise for the Court to charge the jury, in the words of Commonwealth v. Almeida, 362 Pa., supra, that if they were convinced beyond a reasonable doubt that defendant set fire to the Torti house or procured Flynn to do so, and Flynn died as a result of burns received in that fire, either while watching the house or setting fire to the house, or attempting to escape from the house, that would be murder in the first degree.
It is clear that the verdict of the jury, to wit, murder in the first degree, was proper and justifiable under the evidence and the law, unless there were trial errors which necessitate a new trial.
Trial Errors
The question of trial errors has given us grave concern.
Defendant contends that it was error to admit in evidence a tape recording of a statement of Mrs. Serrian made in the presence of the defendant, the important parts of which he denied; and that it was also error to admit those parts of a tape recording interrogation of the defendant by the district attorney, who several times accused defendant of lying and likewise stated his belief in defendant‘s connection with the Torti arson.
Statements made in the presence of a defendant cannot be used as evidence against him unless he acquiesced in them affirmatively or by his silence when he should have spoken. If defendant admits any part of the statement, or acquiesces in a part of the statement affirmatively or by his silence when he should have spoken, that part of the statement is admissible
The trial Judge admitted the aforesaid tape recording statements (a) of Mrs. Serrian and (b) interrogations of the defendant by the district attorney not for the purpose of showing admissions of guilt, “but for the sole purpose of showing that the defendant in the course of an official inquiry made evasive and contradictory statements tending to deceive the investigators, thus constituting one fact in a chain of facts indicating guilt.”
In Commonwealth v. Clark, 123 Pa. Superior Ct. 277, 187 A. 237, President Judge KELLER wisely said, page 285: “... The phonograph, the dictaphone, the talking motion picture machine and similar recording devices, with reproducing apparatus, are now in such common use that the verity of their recording and reproducing sounds, including those made by the human voice in conversation, is well established; and as advances in such matters of scientific research and discovery are made and generally adopted, the courts will be permitted to make use of them by way of presenting evidentiary facts to the jury.”
We therefore hold that tape recordings are admissible in evidence when they are properly identified and are a true and correct reproduction of the statements made, and when the voices are properly identified.
In the light of these principles, we turn now to Mrs. Serrian‘s tape recorded statements.
Mrs. Serrian was asked in the presence of defendant about a conversation she had with her husband in
Defendant also objects to the admission of the tape recording interrogation of the defendant in which the district attorney several times accused defendant of lying; and in other parts of the interrogation expressed his belief that defendant was connected with the fire. The statements made by the district attorney were often in the form of accusatory questions, most of which defendant denied, or said he had nothing to say, or would answer in court. For example, the district attorney said to defendant that if he was an innocent man he would tell the authorities he had nothing to do with it; in another part, after defendant said he would answer in court and didn‘t want to talk at that time, the district attorney said, “Is it because you‘re afraid and you‘re guilty?” The district attorney also several times said to defendant (in these question and answer statements) that he proved to defendant many things, enumerating them, which showed defendant was guilty of the Torti arson.
We have reread several times the district attorney‘s interrogations of the defendant and considering them
It is unnecessary to discuss any of the other contentions made by defendant.
Since the trial errors were in all probability sufficient to prejudice the jury against the defendant: Cf. Berger v. United States, 295 U.S. 78, 89; we have no recourse other than to grant a new trial in this case.
Sentence and judgment of the Court below is reversed, and a new trial is awarded.
CONCURRING OPINION BY MR. JUSTICE JONES:
Under this court‘s ruling in Commonwealth v. Almeida, 362 Pa. 596, 68 A. 2d 595, an accidental killing, which can be factually found to have been a foreseeable result of the events set in train by a perpetration or attempt to perpetrate a felony, constitutes the felon guilty of murder under the felony-murder doc
I agree that the admission at trial of certain objectionable portions of a tape recording was harmful and prejudicial error which necessarily requires a retrial of the case.
OPINION BY MR. JUSTICE MUSMANNO, CONCURRING AND DISSENTING IN PART:
On July 22, 1953, Robert J. Flynn, 18 years of age, died as the result of serious burns accidentally received in a flash fire in an empty house (belonging to one Torti) in Dunmore, Lackawanna County, which fire he had himself ignited in pursuance of an arsonious plan probably entered into with the defendant, Daniel Bolish. Bolish was indicted for murder, and the jury returned a verdict of first degree murder with the death penalty. The evidence fairly well established circumstantially that Bolish was involved in the arson plot, which was to destroy for insurance purposes the house in which Flynn was fatally burned, but it failed completely to place Bolish at the scene of the fire.
The Commonwealth tried its case against Bolish on the theory that he was the instigator of the arson plan and that, therefore, he was guilty of what has been called felony-murder, under
I do not believe that the framers of this criminal statute (enacted originally
It is to be noted that the
It seems to me that this subject of felony-murder has been somewhat loosely treated in recent years. In the first place, the term itself is awkward and obscure. Why felony-murder? What does it mean? What does it comport? Every murder is a felony, but not every felony is a murder. I believe that in expressing the situation intended by the statute, the better term is the English one of constructive murder. A constructive crime is one which occurs when an original unlawful act develops, through no intention of the actor, into a second unlawful act, and the actor is charged with the second act. Before one can be charged with a constructive crime, however, it must be shown that the second act was one committed in furtherance of the original criminal plan. In order to have constructive murder, there must be an unbroken continuity of circumstances between the attempted or completed felony and the
But in the case at hand the death of Flynn was not something within the scope of the arson plan. Instead of its being in furtherance of the criminal design, it was actually in hindrance of it. The death of an accomplice removes an executant of the enterprise and this fact might well cause a collapse of the entire criminal venture.
All forces of law and order are naturally interested in the punishment of criminals, but there is no more legal justification for electrocuting an arsonist when the law does not provide such a penalty than there was moral warrant for hanging pickpockets during the early days of the common law. Whatever Daniel Bolish did, it was not constructive murder and, regardless of the extent of his knavery, he should not suffer death for an act which does not fall within the provisions of the code for murder. The most energetic proponent of the felony-murder doctrine would scarcely argue that if Flynn had died of a heart attack while he was in the Torti home, Bolish would be guilty of murder. Nor could it be maintained that if Flynn had shot a bullet into his own head after igniting the fire in the Torti home, Bolish should be held for felonious homicide. But such hypothetical deaths are no more removed from Bolish‘s intentions than was Flynn‘s actual death, which was admittedly accidental.
The Trial Judge said further: “If you do not find that the Commonwealth has proved to you beyond a reasonable doubt that this defendant, Bolish‘s, action was the proximate cause of the harm and subsequent death of Flynn; that Flynn‘s own willing, understanding action superseded, in the chain of events as the substantial cause of the harm to him, the original chain set in motion by Bolish, then you would have to acquit him.” This part of the charge was eminently correct. Naturally if the chain of events set in motion by Bolish was broken by an independent act of Flynn‘s, Bolish could not be held responsible for what followed.
However, the lower Court seeks to sustain the verdict of first degree murder on a theory which has absolutely no substantiation in the record, namely, that Flynn was innocently within the Torti house. The circumstantial evidence establishes that Flynn entered the Torti house by means of a key to which he had no right, that after unlocking the door he returned the key to the pocket of his shirt which he later exchanged for a soiled shirt to wear while he was carrying and set
Eager as police authorities, district attorneys, and even judges are to solve crime mysteries and to visit on criminals the punishment they deserve, neither abstract justice nor specific law will permit guesses and suppositions to take the place of evidence. The lower Court attempted to supply the break in the bridge of causation between Bolish‘s arson plan and Flynn‘s death by mounting a span which declared that Flynn was an innocent dupe, but this span crumbles at the slightest touch of analysis and the bridge falls with it. What would Flynn be doing in a strange house in the middle of the night? Why did he fabricate the so palpably untrue tale that he received his fatal burns while drying wet clothes? Flynn was not a third-person victim of a felony (the innocent person contemplated in the
In addition to the all-important reason that one not guilty under law of a capital offense should not be
Our criminal code does not impose the penalty of death for the crime of arson. Judges may not, by following a certain line of argument, arrive at the conclusion that arson leads into and becomes murder when a non-criminal death fortuitously coincides with some factor involved in the commission of arson. The constructive murder theme of the
I believe that some of our decisions have gone too far in application of the constructive murder theme of the
In the interest of systematic law, must there not be a limit beyond which the
I dissent from the Majority Opinion which holds that the facts as presented in the lower Court could support a first degree murder conviction against Bolish, but I concur in that part of the Opinion which awards a new trial for the reasons stated.