*1 by argument coun- reinforced from defendant’s court, plaintiff failed find, so and the would have would sel, comport not establish her case. But with does my say justice idea of modern accident the happened could have the manner described plaintiff’s there is no evidence witnesses when happened any except way, it could have other hypothesis guessing. “evidence” sheer against entering plaintiff, In the nonsuit recovery court there can lower said that before obviously in a case of this kind be an dan- there “must gerous slips condition.” this observation on the But faulty steps logic. For if wet the condition were obviously dangerous, plaintiff possibly could not charged then be con- recover because she would tributory very negligence. It latent and lurk- plaintiff ing quality slipperiness which lured responsibility produced injury her instrumentality since the was under its ex- defendant, supervision. and within its immediate control clusive procedendo. the nonsuit with remove I would Appellant. v. Elliott, Commonwealth *2 Argued April Before Drew, C. J., Chidsey and Musmanno, Stearns, Jones, Belu, JJ. reargument refused June 24,1952. A.W. him Arthur Winkelman,
Barnie F. with appellant. for Cowan, Attorney,
Thomas M. Assistant District Reed, Attorney District Assistant Malcolm Berkowitz, him ap- Richardson District Dilworth, Attorney, pellee.
Opinion
1952:
Mr.
Bell, May 27,
Justice
*3
and
indicted
Theodore
Avas
Elliott,
The defendant,
shot
whom he
police
the murder of a
officer
tried for
an armed
He
robbery.
in
of
pleaded
the course
to
changed
of trial
days
plea
after five
but
guilty,
em-
old and
years
regularly
He was
Avas
guilty.
and
earned
in
cement
where he
factory
ployed
$84
planned
The
was
and execu-
robbery
a week.
upwards
cousin,
defendant and his
John S. Frank. Frank,
ted robbery,
after his arrest confessed
the
shortly
who
of
imprisonment.
plea
to life
After the
was sentenced
for the defendant
requested that
counsel
guilty,
to examine
psychiatrist
Elliott
and
appoint
Court
William
Dr.
act
appointed
Drayton,
Court
Jr.,
for
as well as
the defendant.
the Commonwealth
for
impose
who sat to
care-
Judges
The three
sentence
of
all
the evidence as
as the report
considered
fully
well
shall
and other matters
to which
Drayton
Dr.
we
and found without hesitation
refer,
hereinafter
Mitchell
of Officer
deliberate
“the murder
wilful,
and
and constitutes murder of the
premeditated,
first
Drum,
“Since solemn judgment unfettered to the conscience and left in the of the ease light particular court facts not of great are decis- precedents value, before it, and has not law cannot shackled exercise of ional into bonds of such stare decisis. judgment problem “We are with a penology: confronted of. ‘A Commonwealth v. D. & Ritter, C., 285, [13 288]. court is not called think upon we state, generally to refrain from would do well in detail its recording, the sentence reasons case.’ imposes each Commonwealth v. 66 D. & C. Levin, have four
“Penologists recognized upon theories imposition punishment is namely, based; restraint and reformation, retribution, deterrence. The application first has no this the second case; in an era of incongruous enlightenment; the third is relatively unimportant where the im choice is life or prisonment the fourth death; must be regarded as objective important punishment regardless of the amount enormous conflicting literature on the sub “The real ject. question not as to whether the death inis penalty general deterrent, as to particular kinds murder cases which execution would *4 likely would not be most to effect be deterrence. It a of problem comes determining the basis upon which make to such classification.’ Commonwealth Ritter, v. at pages supra,
“In applying theories such as we must con- these, of all the features sider and circumstances of crime and specific of history the defendant who it. A committed distinction has been made between mental crimes of A opposed to emotional impulse. wait murder or by poison lying diabolically planned requires mercenary similar motives for some rea- a killing engendered penalty; whereas, death a elements of necessary though son passion, differently. considered kill, intent may specific course murder committed a Certainly ob- the first down ruthlessly shooting armed robbery, de- case here, human as was the resistance, stacle murder The penalty. the former unwarranted mands crime. Mitchell was such a of Officer this the individual committed who “In turning facts his The depravity. are concerned with we crime, us he is an individual who murder convince of this savage society undoubtedly and dangerous no reason to this victim There was mow nature. no occasion to fire so precipitously cold blood, down of a and savage depraved as manifestation except nature. from history replete with crime personal
“His possession an early age; larcenies, burglaries, hold-ups, and confinement on at three occasions least firearms, level institutions. his mental Although to correctional testing, psychological low as measured by is allegedly trial an innate he shrewdness throughout exhibited He characterized perception. was sharp as the leader series of long crimes detectives corroborate his tendencies such a conclusion. aggressive no economic pressures “There were excited His for crime. work record lust steady; this We have searched his history earnings adequate. justifiable explanation. for some carefully We have ruthless cruel, and brutal only depraved, found none, can be one There choice. individual. therefore adjudges court Theo-
“The defendant, Elliott, to be of murder in the first guilty degree dore . at . death.” penalty fixes *5 legally not for that he was Counsel defendant admits deficient as mentally but contends he was so insane, Mental imprisonment. life a sentence of justify only this be and should deficiency always is a fact which and in determining taken into consideration case was no case However, or sentence. fixing penalty aor Judge that trial a ever decided Pennsylvania has reduce law, matter must, as Supreme Court because imprisonment life from death to sentence mental or a moron weak unstable, defendant defective. well in 1939 as
Dr. had examined Elliott Drayton examination as in 1950. In his relative to report that he of Elliott Dr. Drayton reported of testi- *6 moron Judge who is deficient the mentally sentencing or Court entire must consider (1) his record during life and and particularly reports every psychologist be psychiatrist who has examined and must him, (2) in controlled these and by reports impose sentence than the case of degree higher murder in the first theory life imprisonment. contention the This carries or doctrine ex- responsibility” of “diminished treme and the would in and not in psychiatrist vest fix Courts the to determine right power punishment philosophy for crimes. Such a theory would soon from transfer of criminals punishment in Courts to psychiatrists inevitably and would result a further breakdown enforcement and of law eventual op- confusion and our are Fortunately chaos cases posed to such an undesirable result.
Section 701 of The Penal
of June
Code,
24, 1939,
Act
P.L.
18
“In
872,
provides:
pleas
P.S.
cases of
4701,
be
guilty,
where it determines
crime to
court,
murder of
at
its discretion,*
the first
shall,
degree,
impose
imprisonment
sentence of death or
life.”
The evidence must of course
to establish
be sufficient
the crime of murder in
first
must
there
degree
be
in
evidence
the record
indicating
discretion
vested
in
by
judicially
the Act
the Court below was
exercised: Commonwealth v.
69
Givens,
* throughout, Italics ours.
77
penalty,
whether the discretion
in the court
reposed
below was
v.
judicially
exercised: Commonwealth
Howell, 338 Pa.
A. 2d 521. It
not lie
does
577, 580,
within our province
attempt
as an
court to
appellate
trial
imposition of a fixed and immutable standard upon
discharg
courts for the
guidance
their discretion
their
ing
Commonwealth
statutory duty
regard:
this
v. Samuel
Com
317;
355 Pa.
50 A.2d
Jones,
522, 534,
monwealth v.
A.2d
So
346,
359 Pa.
Taranow,
as the
long
ingredients
to constitute murder
necessary
in the first degree
imposed
are
and the
present
penalty
keeping with the alternatives
authorized
*7
unless
statute,
this Court
is without
to act,
authority
it plainly
in over
appears that
the court below erred
of
looking pertinent
in
force
or
the
facts,
disregarding
or
in
erred
evidence,
Hawk,
its law: Commonwealth v.
328 Pa.
this
417,
this
422,
Where a defendant a trial legally judge may, sane, upon application or upon his own secure initiative, mental examination the of the defendant “. . to. guide judge determining disposition what shall be made the defendant”: Section Act of P.L. 1,- May 1933, 2, 19 P.S. 1153.* 224, The law does not require Judge to be controlled, or absolutely report otherwise, psychiatrist, merely requires the Judge consider such report as a guide his determination of sentence; the trial or make Judge Court may
* Since the time that the defendant in this case was sentenced repealed. this statute has been
78
or
capacity
defendant’s mental
its
appraisal
own
mentality
education,
his history,
moral responsibility,
appropriate punishment
and background and what
facts
upon
or
based
sentence should be,
its
as well as
and all
the evidence presented
crime
Frisbie,
v.
Commonwealth
at the trial: Cf.
observations
Pepper
v.
342 Pa.
A. 2d
177, 20
285; Commonwealth
v.
Commonwealth
353 Pa.
Judgment Mr. Justice Jones in the result. concurs Dissenting by Opinion Mb. Justice Musmanno, 1952:, June 24,
I from the of court’s dissent the lower affirmance not because minimize the of seriousness decision, crime committed terrible because defendant, n I to imposed wras one-.directed apprehend-the penalty ' n (cid:127) - (cid:127) offender; and not to the offense justice heavy punishment in the of There no scale is enough to make atonement for Theodore Elliott what Theodore Elliott a different is, hut for scale, what did, Punishment to to must be used. is be me, seems capacity according applied to the of as individual, enormity delinquent of the act. as to the well mental here is a defective with a The defendant February long abnormal conduct. On record of 27, injury years head later he two 1937, sustained “therapeutic hospitalization recommended for en- diagnosis cephalography.” made on November The “middle-grade moron cerebral trauma.” 1939 was person An insane never out-and-out is executed, city. though If he an insane multi- even burn down punished ple slayer from death or even not is saved liberty except to restrained of on account of at all be dangerous any to mental irre- his nearness character, sponsibility on consideration must also receive basis penalty. of the death of avoidance irresponsibility mental If Elliott’s was such as to might margin free choice of decrease action, enough irresponsibility explain ferocity not be killing, principal fact seems to be the imposition for the court’s lower death basis penalty? judges of the court lower indicated from
One imprisonment that a of life the bench sentence is not regarded penalty lesser than that of death. categorically. challenge I that statement It can be stretching truth from nadir as a universal stated regardless no one circumstances, zenith wants person may, spiritual in instant to die. Some agony express physical a desire for death as an pain, anodyne from intolerable but that desire is never always there because full-hearted reserve cord of life that the silken realization broken *9 There is no in the actual wishing. a mere by person from the of life who precipice of extremity dropping for a of time to crag does not reach desperately for against eternity to a moment awful cling even With all “slings of silence below. its arrows life is and death is al- yet sweet outrageous fortune,” ways cruel.
In of the fact the defendant pleaded view murder and the court fixed the degree guilty, issue left only murder at first whole degree, for determination was that of life imprisonment death. meant the fol- by was against What, therefore, lowing colloquy? I for a mo-
“Judge May interrupt you Carroll: ment? I do from change not consider sentence to life a reduction in imprisonment the electric chair sentence. I that—
Mr. reference to May say Winkelman: You do not I have answer it. Judge Carroll: to orient yourself want some us just you way think.”
The learned thus Judge spoke might philo- who incarcera- suffering daily assume sophically for tion the remainder one’s existence would its the momentary cumulative exceed of elec- misery pain cannot personal but this he force trocution, philosophy into prefers awakening daily on another who still never-ceasing with its To living song hope. world that one of the three therefore, who judges extent, of life or ac- question on awesome passed death, that the mold of the no grim- believed tually grave than cold of a to that extent his cell, participa- mer in the consideration of the appropriate penalty tion no defendant at bar was of worth whatsoever. His verified further unfortunately conclusion was from the bench that he did not care to remark look at
81 in defend- from the which the reports hospital clinical had ant been treated. in report
The was one from St. question Luke’s Hospital and Children’s which told the defendant’s head on 1937. injury February One item reads: 8, an incision was made the left frontal “2-23-37, over drainage area and established.” Another item read: “3r22. incision parietal region to 4 about 3 inches above frontal incisions to allow and through through drainage.” from other clinical Excerpts reveal fol- reports “In entries: lowing past sixteen months this boy has advanced but six months mental age and his inferiority intellectual is now very apparent. It is un- make likely that he will much further progress for no he for shows capacity intelligent nor reasoning ideas. He mastering new is childish, irresponsible, easily led, very superficial with ideas of moral values.” November 1939. 10, led.
“Boy easily Associated bad group of boys. Boy mentally defective, extraverted and hyperactive and activities with knives lead to conclusions that he * * *. is dangerous
“Volunteers symptoms cerebral head- trauma, aches and noises. Had had a head injury February, * * * 1937
“The hospitalization recommendation: and thera- peutic encephalography.
“Diagnosis: grade middle moron: cerebral trauma. Q. I. 68.” November 1939. 22,
“NEURO-Psychiatric Clinic
House Detention 15 Age:
Chron. Yrs. 9 mons.
Mental 9 Age: Yrs. mons.
IQ. 66” October
“Re-Examination— Report of
10-15-42
Psychiatrist: mentally boy reacts, and now deficient, rates, is
This middle-grade He is on moron basis. reasons quiet, slippery, insincere. He is not evasive, dangerously on at and he law- all, be trusted is set profited by Glen Mills. record less life. Has not His significant. long knife In are at least two *11 implication hold-up. episodes, in armed comes now RECOMMEND-Huntingdon.
Diagnosis: Middle-Grade Moron Psychopathic
Constitutional Inferior D. M. D., G. Davidson,
Psychiatrist” report Dr. J. Boon of Medical David “From 8-4-38 history persistent headache
1. Dr. Weber: ago, penciled years a nota- three with fractured skull Fracture.’ tion ‘No Investigation of Detention 5-31-36’
From ‘House of ‘keep episode Elliott said Mrs. time, —First —at gets any boy up if he in God calls him locked until ” trouble.’ more up Perhaps de- had if authorities followed dreadful mur- recommendation, mother’s fendant’s brought oc- case have about this would der which might speculation have as to what curred. However, pre- happened confronted with the is futile. We are young question man whose vision as to whether cise by cerebral darkness should been curtained life has responsibility degree into as one the same be held to daylight rea- clear of unclouded falls whose brain son. Linn v.
Mr. Justice the case Commonwealth approval quoted Stabinsky, Pa. 231, 238, with “The Semi from Insane and the Grasset, statement “ responsibility Responsible”: ‘Diminished ais Semi scientifically capable established scientific fact, ” being analyzed upon may, horror look do, We we indeed penal- if the Theodore Elliott’s measure deed, responsi- ty equal and not exceed the measure scarcely light bility, of modern said, can expiate only penology, Elliott crime in can his electric chair. properly
The court below said: “There were no eco- pressures nomic excited this for crime. His which lust adequate. steady; earnings We record was work carefully justifiable history for some have searched his only explanation. depraved, have We none, cruel, ruthless and brutal individual.” depraved explanation find for this
The failure to argues very thing and brutal crime is the responsibility. Of course, the defendant’s diminished *12 simply tiger, tiger is a be it if a killed because super- in a of this character is case then discussion ascertaining if in the reasons and fluous. But causes responsibility man-tiger, find a moral make a we pace keep development, with the not bestial which does duty considering charged whether are we capacity in moral should soften the failure of retribution. iron hammer blow dangerous and must Elliott creature Theodore imprison- tiger Life is restrained. restrained, Elliott If could be shown that do this. it ment would shape of head selection as to the his a freedom of had had the free into and also that went the brain jolted by the brain should be as to choice whether could rea- then no one blow, an automobile force sonably challenge law and society taking its ultimate toll. But since Theodore Elliott did not have I choice, and I believe, say this with the utmost deference to those who, the conscientious discharge of their duty, think his life otherwise, should be saved. Borough Appeal.
Dormont Appeal. Leech March Argued 1952. Before C. Drew, J., *13 Chidsey Bell, Stearns, Jones, JJ. Musmanno, notes but he read all the only him, examined examined some of them as well as mony, twice, was court Dr. stated that defendant Drayton records. defec- mentally a middle that he moron, and grade likewise He tive and fabricator of the first water. shrewd- found had a of native that he certain amount ill. being mentally ness and showed no evidence of his coun- There no contention or by by defendant insane. sel he was After the death sentence was counsel imposed, petition incorporate defendant filed a certain records showing defendant’s and his examination history other likewise psychologists and and psychiatrists; sen- petitioned Court to vacate sentence. The tencing granted petition Court heard studied all the evidence which defendant’s so attorney thoroughly painstakingly presented. The sentencing composed three Court, judges, was unanimously opinion had been nothing presented to it which would warrant disturbing imposed. sentence Defendant contends that because a criminal murderer is a weak, unstable, aggressive, dangerous