Commonwealth v. Feinberg, Appellant
Superior Court of Pennsylvania
November 16, 1967
211 Pa. Super. 100 | 234 A.2d 913
Judgment affirmed.
Commonwealth v. Feinberg, Appellant.
Gordon Gelfond, Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
OPINION BY MONTGOMERY, J., November 16, 1967:
These appeals are from judgments of sentence imposed following appellant‘s conviction on five charges of involuntary manslaughter.1 They arose by reason of the deaths of five individuals2 from methyl alcohol (methanol) poisoning due to their consumption of Sterno, a jelly-like substance prepared and intended
Appellant Max Feinberg was the owner of a cigar store handling tobacco, candy, etc., in the skid-row section of Philadelphia and sold to residents of that area Sterno in two types of containers, one for home use and one for institutional use. Such sales were made under circumstances from which it could be reasonably concluded that appellant knew the purchasers were intending to use it for drinking purposes by diluting it with water or other beverages, and not for its intended use.3 Prior to December, 1963 there had been no known fatal consequences resulting from this practice, presumably for the reason that the product then sold by appellant contained only four per cent methyl alcohol (methanol). However, on December 21, 1963 appellant bought from the Richter Paper Company ten additional cases of institutional Sterno containing seventy-two cans each, unaware that it contained fifty-four per cent methanol, although the lid of each container was marked “Institutional Sterno. Danger. Poison; Not for home use. For commercial and industrial use only“, and had a skull and crossbones imprinted thereon. Nevertheless appellant ignored this warning and sold part of this supply in the same manner he had previously dispensed his other supply of the product. The containers of the regular Sterno and the institutional type previously sold contained no such warning and were merely marked “Caution. Flammable. For use only as a fuel.” The only difference in the containers previously sold was
It is the contention of the appellant that his convictions on the charges of involuntary manslaughter cannot be sustained either on the basis of a violation of the
In the two earlier acts “poison” is defined in a general manner as “any drug, chemical or preparation, which, according to standard works on medicine or materia medica, is liable to be destructive to adult human life, in quantities of sixty grains or less.” In the 1961 Act poisons are specifically named and described. Methyl alcohol and preparations containing one per centum or more of it, except when used as a preservative and not sold to the general public, is one of the enumerated poisons.
Appellant concedes that the new institutional product under consideration falls within the definition of
Our close study of the 1961
“(3) ‘Drugs’ mean—
(i) Articles recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary.
(ii) Articles intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals.
(iii) Articles (other than food) intended to affect the structure or any function of the body of man or other animals“, and
“(5) The term ‘device’ means instruments, apparatus and contrivances, including their components, parts and accessories, intended (i) for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals, or (ii) to affect the structure or any function of the body of man or other animals.”
Sterno does not fall within the foregoing definitions of drugs or devices. It is a product intended by its manufacturers for heat producing purposes only and not for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animal, nor to affect the structure or function of the body of either. There is nothing in this record to indicate otherwise. It was not prepared for use as a medicine or a beverage for which misuse the purchasers of same converted it by dilution.
Our conclusion as to the intention of the Legislature in enacting the 1961
Our conclusion, therefore, is in accord with that of the Attorney General in Phosphorous Matches, supra, which is entitled to great weight, Davis v. Sulcowe, 416 Pa. 138, 205 A. 2d 89 (1964), affirming 81 Dauph. 72, and with Boyd v. Frenchee Chemical Corporation, supra.
There remains the question of whether the Commonwealth has established that the deaths under consideration were due to the criminal negligence of the
We are satisfied that the record clearly establishes that appellant, in the operation of his small store with part-time help, knew that he was selling Sterno in substantial quantities to a clientele that was misusing it; that in order to profit more from such sales he induced Richter Paper Company to procure for him a supply of the institutional product because the cost of same was less than the regular type with labels; that he was aware of the “poison” notice and warning of harmful effects of the new shipment received on December 21, 1963 but nevertheless placed it in stock for general sale by himself and his employes; and thereafter sold several hundred cans of it; and that he dispensed it without warning his purchasers of the harmful effect it would have if misused for drinking purposes, and without directing their attention to the warning on the containers.
If the deaths of these five persons were the result of appellant‘s actions, it justifies his conviction for involuntary manslaughter.5 Although a more culpable degree of negligence is required to establish a criminal homicide than is required in a civil action for damages, we find the appellant‘s actions as fully meeting the def-
Next, we must proceed to a determination of whether the evidence is sufficient to establish that appellant‘s conduct was the proximate cause of the deaths with which he is charged.
Bill 1934—Lynwood Scott
Lynwood Scott, white, age 50, was pronounced dead on December 26, 1963 at 3:00 p.m. His death was attributed to methyl alcohol poisoning by a medical expert. Found near his body were the following extraneous evidence: an institutional brand type empty Sterno can; an institutional type of Sterno can which contained a small amount of pink liquid; a Sterno can, the commercial brand labeled kind, containing a pink liquid; a jar containing four ounces of pure white liquid; a four ounce jar containing a half ounce of green fluid.
The first item was empty and therefore its contents were not subject to analysis. The contents of the second item, being another can of institutional Sterno, were analyzed and found to be the residuum of the type of Sterno containing a high percentage of methyl alcohol. The third item was the commercial labeled type of Sterno and apparently was not analyzed for that reason. The fourth and fifth items showed nothing significant concerning methyl alcohol. Thus the only source of the lethal poison was the second can of
Bill 1940—John Streich
John Streich, age 51, was pronounced dead on December 30, 1963 of methyl alcohol poisoning delayed “for several hours to one to two days“. Five empty institutional type Sterno cans without lids, and one regular type can containing less than an ounce of pink fluid were found near him. However, it was testified that the contents of the regular type can alone could not have been the cause of death, and that death was consistent with the drinking of the higher alcoholic content type institutional Sterno.
John Woods testified that around the holiday season when everyone got sick, he and Jimmy Houston bought Sterno at appellant‘s store, mixed it with pepsi cola and drank it in company with Jimmy Newsome and Jack Stretch (Streich), Newsome and Streich dying the following morning.
Bill 1942—James Newsome
James Newsome, age 44, was pronounced dead on December 30, 1963 due to delayed methyl poisoning from drinking Sterno of the type having a high methyl alcohol content. Found near him were a quart bottle labeled King Sherry, several empty cans of all types of Sterno, the regular variety, the institutional type without skull and crossbones and the institutional type with skull and crossbones. One can of institutional Sterno without skull and crossbones was found with
Bill 1946—Edward Harrell
Edward Harrell, age 48, was pronounced dead of methyl alcohol poisoning on December 24, 1963 at 2:00 p.m. Nothing was found to indicate its source. The expert, however, testified thirty-five per cent of methyl alcohol found in his blood specimen was not consistent with the regular type of Sterno found on the market today.
Arthur Harold identified Harrell as a purchaser of Sterno but could not say when he had made purchases.
Bill 1949—Juanita Williams
Juanita Williams was pronounced dead on December 25, 1963 at 2:30 p.m. of methyl alcohol poisoning. A partially empty can of Sterno of the industrial type was found near her, but on analysis of the contents was found not to be consistent with her death, since it did not contain a sufficient percentage of methyl alcohol. However, Wayne Williams, who described himself as the common-law husband of the decedent, testified that on December 24, 1963 he bought three unlabeled cans of Sterno from appellant‘s store and took it home where his wife mixed it with water to make “a little over a half a gallon” from the three cans, the empty cans being discarded out the back window; that they drank some of the mixture during Christmas Eve; that the next morning his wife was ill and he called a doctor but she was dead before he
From the foregoing evidence Hon. CHARLES L. GUERIN, Judge, who tried these cases without a jury, found that the deaths of the five persons previously named were due to methyl alcohol poisoning due to drinking institutional Sterno, containing a large quantity of methanol, procured from the appellant. There is sufficient direct evidence to support this finding as to Juanita Williams.
As to the others, the evidence is largely circumstantial. Although earlier decisions enunciated the rule that to warrant a conviction on circumstantial evidence alone such evidence must exclude to a moral certainty every hypothesis but that of guilt, or must be inconsistent and irreconcilable with any reasonable hypothesis of the accused‘s innocence, the more recent decisions state the rule to be that to warrant a conviction on circumstantial evidence the facts and circumstances established by such evidence must be of such a character as to produce a moral certainty beyond a reasonable doubt, but need not be absolutely incompatible with innocence. However, guilt must be proved and not be conjectural, and cannot rest solely on suspicion or surmise. Commonwealth v. LaRue, 381 Pa. 113, 112 A. 2d 362 (1955).
Following this guide in analyzing the evidence we readily conclude that it is insufficient to prove the guilt of the appellant for the death of Edward Harrell. True, he died of methyl alcohol poisoning during the period appellant was selling the lethal type of Sterno, but there is no proof that he was sold such product or received it from anyone who had procured it from appellant. He was identified merely as a customer in appellant‘s store who bought Sterno, which purchases may have been long before appellant began selling the dangerous types. Furthermore, no extra-
The evidence in the case of Lynwood Scott is stronger. He died of methyl alcohol poisoning during the period appellant was selling the lethal variety, a can of such variety was found near his body, appellant was the only source of such variety, and Scott was identified as a customer of Sterno in appellant‘s store. Although the time he made purchases was not established by direct evidence, it may reasonably be concluded that it was during the period the lethal variety was being sold by appellant since a container of such variety was found near him.
The deaths of John Streich and James Newsome may be considered together since they died the same day, December 30, 1963 from methyl alcohol poisoning after having drunk Sterno mixed with pepsi cola in the company of one another and of James Woods. Woods’ testimony to having purchased Sterno during the holiday season of 1963 from appellant, the finding of empty institutional Sterno containers without lids (the distinguishing marks of the lethal type being on the lids of the containers they could not be identified as such), and the testimony of the medical expert that their deaths were consistent with drinking the higher alcoholic content type of Sterno was sufficient to satisfy the aforesaid rule. Appellant argues, however, that since Woods testified to having bought the product from appellant on December 29, the day before the deaths, and which was the day after appellant returned the unsold part of the order of lethal Sterno to Richter Company, that this established that his actions were not the cause of their deaths. We do not agree. The record does not establish as a certainty that all of the unsold cans were returned and it was for Judge GUERIN to determine this fact. In the light of the testimony of appellant‘s employe Harold that
We find no merit in appellant‘s argument that there is no evidence to prove he ever sold a can of the new institutional Sterno. The evidence clearly shows that he was in full charge of the operation of the store when the bulk of the new product was sold. Harold was only a part-time employe coming in after school and on Saturdays, and during this period appellant‘s wife and family were in Florida, which left appellant as the one who made the bulk of the sales.
Nor do we find any merit in his argument that he was unaware of the warning on the cans. He must have handled many of them during the course of events when almost four hundred cans were sold. The circumstances established by the evidence sufficiently supports a finding that he did know of the change in markings but disregarded it. As far as instructing anyone else to sell the product, the fact that it was available for sale in an opened carton under the counter is sufficient to indicate an implied authorization.
The facts in this case do not indicate the prosecution of a person for acts done by another without his knowledge or consent. Appellant was the active participant with full knowledge. He, personally, and through his part-time employe, acting under his orders, committed the crimes. For this reason alone it is readily distinguishable from Commonwealth v. Koczwara, 397 Pa. 575, 155 A. 2d 825 (1959).
The judgments of sentence, therefore, are affirmed in the cases of Lynwood Scott, Appeal No. 166 on Bill 1934; John Streich, Appeal No. 167 on Bill 1940; James Newsome, Appeal No. 168 on Bill 1942; and
DISSENTING OPINION BY HOFFMAN, J.:
The lower court found defendant guilty on five counts of involuntary manslaughter. Our court today holds that the sale of Sterno does not fall within the
The majority, however, seeks to affirm the judgment of sentence by holding that the lower court found that defendant was guilty of criminal negligence. A careful review of the record discloses that the basis of the judge‘s decision is never clearly set forth. Indeed, the remarks on the record and opinion of the lower court tend to indicate that the judge considered only the violations of the
In overruling defendant‘s demurrer, the lower court stated: “It is my considered opinion that the evidence produced by the Commonwealth with respect to each of the indictments as to which the demurrer has been offered [all outstanding bills at that time] has established a strong prima facie case of violation of the Act of Assembly [Pharmacy Act] in question.”
A short time later, the trial judge set forth his reasons for finding defendant guilty. He defined involuntary manslaughter as the: “... unlawful killing of another without malice. Involuntary manslaughter results where there is no specific intention to take life, but from the doing of a lawful act in an unlawful manner or from the doing of an unlawful act.” The trial court then devoted five pages to discussing defendant‘s actions with regard to the
Lastly, the trial court filed an “Adjudication Opinion.” Such an opinion must be filed pursuant to Rule 46 of the Rules of the Superior Court which provides in part that, upon notice of appeal, “... the court below shall forthwith file of record at least a brief statement of the reasons for such order, judgment or decree, in the form of an opinion. ...” In its opinion, the lower court once again defined involuntary manslaughter as previously stated. It then devoted six pages to a discussion of the applicability of the
At no point in the record, however, is there a suggestion that the lower court found defendant guilty of
In light of this record, it is our duty on appellate review to assure that the defendant has received all of the procedural and substantive safeguards in nonjury as well as jury trials, and that the prosecution has proved its case beyond a reasonable doubt.
The defendant in this case waived his right to trial by jury. In a trial before a judge, as distinguished from a trial before a jury, no formal instructions are given. Thus, our Court can only determine from the judge‘s remarks on the record and from the required opinion whether the law has been applied correctly. In other words, the sole question before us is whether the judge, sitting as a fact finder, found defendant guilty of criminal negligence rather than ascertaining whether the record discloses facts upon which defendant could be found guilty. We must, therefore, be convinced beyond a reasonable doubt of defendant‘s guilt based on the proper standard. See United States v. Maybury, 274 F. 2d 899 (2d Cir., 1960).
Had this case been tried before a jury which received instructions that failed to set out the legal standards of criminal negligence upon which the defendant could be found guilty, we would not assume that the jury actually found defendant guilty on that basis. The conviction, therefore, would, of necessity, be reversed.
Therefore, since it is impossible to determine from this record whether the lower court found defendant guilty of criminal negligence, the present verdict should not be sustained. I would reverse and grant a new trial.
Commonwealth v. Herb, Appellant.