*1 оpinion attempts majority justify con- The its provisions (1) ignoring by, clusion effect, Parking (2) Authority by analogizing and Law and equating under three contract with tenure Civil Service the Teacher Tenure Acts. necessary glance Tenure even at the Teacher contract Acts Service Acts to realize Civil anything employment years, more, for three without day is is as different from “tenure” in those Acts as opin- night. apparent majority This from the “set[ing] ion which summarizes those Acts itself, requirements great em- detail the minimal forth in an govern- ployee initially to secure must meet order employment, the for ment standards advancement job employee, an remunerative such classifications for requisites purposes discharge.” are and the There provisions Parking Authority no such Law. (Philadelphia) Parking Authority em- Law powers, Authority short as we in two seen, compensa- appoint employees fix their sentences tion and to make contracts which are convenient equate necessary. To contract Scott’s for a three period provided tenure voluminous with in the Teacher Tenure the Civil minute detail Acts and equating comparing Service Acts is farfetched as Mt. a little hill Blanc. judgment
I affirm the would Court below. Appellant. Commonwealth Ladd, *2 Before J., 1960. C. April Bell, Argued Jones, JJ. Bok and Cohen, Eagen, Musmanno, Jones, De- refused reargument 1960. cember 30, appellant.
Weil W. for Burd, District M. Assistant Attor- Richard Rosenbleeth, At- Assistant District Domenick him VHullo, ney, District Paul M. First Assistant At- torney, Chalfin, and Victor H. torney, District Blanc, Attorney, appellee. Commonwealth,
Opinion Mr. Justice December 1960: Bok, defendant Appellant ivas indicted in one two bills, for murder and one for manslaughter. Both indict- ments allege that victim assault struck on September 21, of it on died November 1959. He moved quash indictments for the rea- son that it is the common Pennsylvania no one is for a responsible death killing where ensues after the beyond stroke. The court below overruled the motions and defendant appealed. Whether is and still should be current us is the among question. single
This court has not decided before. The Pennsylvania is only authority Commonwealth Pa. & 5 D. C. 105 Evaul, when (1924), Judge Gordon assumed that the rule existed in Pennsylvania in cases felonious of homicide but refused to extend it to the misdemeanor of involuntary which was manslaughter, the case he before had him. he However, mentioned the existence of confusion over the nature of thе rule and cited 4 Heydon’s Coke’s Beports Case, where 41, time held run from was the death and not from the stroke.
In the instant case the court also below felt as late as Sir when 1736, Matthew Hale’s of “History Pleas of Crown” was there was published, disagree- ment common among law scholars over the of nature the rule time and the from which it ran.
We are of course concerned with the date of May such of 14, when 1776, common and law statutory as had England theretofore been in force in the province Pennsylvania became the law of the Com- monwealth by Act of 1 January 28, L. 1777, Sm. 46 429, §2; PS §152.
167 dealing ways At common there three oí were manslaughter. by indict- One with and Eng- King, ment at the became in suit of and this pub- land and the States United what we recognize prosecution. appeal by death, lic an second was private process by in- and an which was vindictive party grew terested out of the old Germanic and which compensation “weregild”, death. for the custom inquisition against The third was deodands, present for- interest it involved because personal death. feiture of chattels that had caused Chapter Book XV, Blackstone murder in defines gives (1769), page at Commentaries prose year dаya timed from the stroke in rule, page for then discusses cutions at lie 197. murder, prosecutions appeals Chapter pp. Book IV, page at Statute of 311 shows that 299-312, appeals (1278), “all c. 9 of death Edw. Gloucestei1, day after the com must be sued and a within Ap pletion party.” felony by the death of the prosecution peals in death, murder, were they later were volved Statute Gloucestei- reign George during XII. abolished Vol. To the same effect Sir Matthew Hale, seq. p. (1736), et “Historia Coronae” Placitorum give also Other commonlaw writers beginning Hawkins, for murder the stroke: *4 p. 91; 1 “Pleas of ed. Vol. the Curwood Crown”, 1824, England”, Halsbury, ed. of Vol. 9 “Laws Hailsham p. Crown”, East. Vol. 1 “Pleas of the 428; §734, Chitty, p. pp. 3 343; 3 Perkins ed. 722; Stephen p. “History England”, 7; of Criminal Law of ed. Perkins on 1950; 1 on Turner 10th Bussell Crime, p. Book 605. Text Series, 1957, Univ. Law, Criminal Only the that one writer throws doubt on doctrine prose- day year runs the and a rule from stroke in the appeals from the death of cutions for of Laws 3 “Institutes Coke, This Sir Edward death. page the Chapter England”, 47 he states VII. On of mem- sound man of “Murder is when rule as follows: unlawfully age killeth ory, the of discretion, any county creature the realm reasonable within king’s peace, malice the rerum natura under imрlied by party, forethought, expressed or either the party &c. die of as or wounded, so hurt, law, year day after &c. within wound, hurt, the same.” page seeing the
Then at occurs: “But day must be in the case of murder and homicide, apres a man be after if accounted le deed, fait, January, poisoned, the first stricken or etc. poison May, day of he dieth of stroke or the first after shall be accounted whether poison given, it shall stroke or or after the death? and the man was be accounted after the then death, poison given, and not stroke &c. murdered, Icing, at the suit both indictment and in appeal party. at the suit And so it hath (Emphasis added.) adjudged often . . .” been only This is the instance in our research where prose- public rule is said to run the death both in private appeals cutions for murder and in of death. In the there United States whatever confusion put Supreme have been was at rest Court in & E. Louisville L. R. St. R. Co. S. 152 U. Clarke, 14 S. Ct. Mr. where Justice Hablan said: (1894), “Ought towe this obvious allow construction by any recognized statute to be defeated com at upon controlling inquiry mon law an appeals cause death cases murder, death, inquisitions against deodands?
“In cases of murder the rule at common un- doubtedly adjudged, ‘by should bе
169 by die any does not to hill who another, act whatever, computation year day in a a within thereafter, done day hurt on which the was whole whereof the c. 2 13; Hawk, P.C. shall 1 be reckoned first.’ Hawk, 4 c. Bl. 306.” §88; P.C. Comm. 197, up Taking appeals on, the Court went of death, “Appeals”, D: quoting Comyn, 2 tit. Inst. 320, appeal “By 6 c. an I, of Gloucester, statute Edw. brought a if shall not abate fresh suit, want year day fact which statute done; is, after the appeal aof to an for the death restrained construction, appeal upon aof man. the death an And, therefore, though day, year there man be within the fresh within suit; given though the blow was before.” death, prosecutions for Prom this we conclude that murder the rule from the time runs given fatal was or the cause of death administered, blow part interpreted, so rule, England common in and 1776. However, before part whether the rule theretofore had become unnecessary law of Commonwealth for us opinion part decide because we are of it is not only the definition of a rule but evidence procedure. Supreme Court States, United prosecutions
Clarke said: “In case, murder the simply was one of criminal evidence.” Among only the States few classified being pleading, procedure, rule as one of evidence, being part on the one the definition hand, murder or as an essential of it or a matter element following on the other. In the substance, cases explicitly has court held rule to be evi one of procedure: People App. 2d dence or v. 106 Cal. Clark, 1951); (Cal. P. 2d 56 v. Ga. 235 Head 68 State, App. (1943); S.E. 2d 145 Elliott Mills, *6 17 11 Nev.
P. 2d 1104 Nevada v. 1959); (Okla. Huff, 759), App. In Ga. (1876). (68 Head v. State, supra, said: Appeals Georgia Court “However, pro one us not one of but question offense, before . . . cedure and evidence have dealt with
“The courts of all the States that
unless
.
accord held that
.
. have with one
question
from the date
death
and a
results within
it is not criminal
infliction of the mortal
of the
wound
courts
. . .
homicide.
followed
reasoning
found well
jurisdictions
will be
the majority
N.E.
Ind.
134
in State
191
678,
v.
expressed
Dailey,
other
. . For
20 A.L.R.
.
decisions
supra.
1006,
481,
v.
see Howard
States
view
following
majority
State,
24 Ala.
137 So.
Roberts v.
App.
532;
State,
512,
Ark.
Ariz.
Kee
28
380;
17
149 P.
v.
159(2),
State,
44
State v.
210;
v.
6 Cal.
155; People
Bantley,
Kelly,
Ill.
306
People
26 Am.
v.
Rep. 486;
Corder,
Conn. 537,
N.E.
102 Ind.
1 N.E.
Epps
137
v.
845;
539,
264,
State,
Rose v.
162 S.W.
491;
To these
show the extent
added,
La.
United States:
v.
196
State
Moore,
So.
Chapman
199
661
Mich.
(1941);
39
People,
(1878) ;
;
357
State v.
In all of the cases cited above and Georgia question court the for decision had to do sufficiency with the of the to with reference indictment, place averments the time and of death. The existence year day and a rule in each im- State portant thing why to determine. One reason the na- ture of the frequently may analyzed was not more suggested by be Blackstone’s reference, infra to Coke’s description statement about murder as a rather than description aas expect definition. In one together find only but unsorted not elements jurisdictional requirements the crime but the of time require- and venue and date of death. These latter right only ments affect prosecute, struc- ture of the crime. People York
New
gard,
held,
v. Bren
265 N.Y.
(1934),
172 North Montana, Nevada, Dakota, Idaho, Illinois, Utah. statutory Pennsylvania definition
In we no our but have taken the Blackstonian definition we (1958), Pa. 486 own: Commonwealth 391 Redline, substantially the saying 137 A. 2d it was adopted 9 Pa. one v. Drum, Commonwealth applied (1868), uniformly Redline thereafter. murder) page (i.e., at 493: “A felonious homicide reads, memory discretion occurs when a of sound being unlawfully feloniously kills human peace sovereign prepense afore malice express implied: thought, Com see IV Blaekstone, p. 63; Sec. mentaries, 195; Homicide, Warren, Ed.)” (12th In Black Criminal Sec. 419 Wharton, Law, preceded by “Mur stone these words are statement: described, rather der is therefore thus now defined, Sir There is mention of Edward Coke.” pages before and a rule. Blaekstone waits for two mentioning page says, al then at “In order 197: it, requisite killing make so it is murder, re party the stroke die within a can death administered.” The rule or cause of ceived, part definition said to be therefore, not, *8 Pennsylvania. or either in Blaekstone in murder, reading principle any do in for Nor we see reason body addendum into the of his definition. Blackstone’s Eng- “History Stephen, Vol. 3 of the Criminal of Law page “an land called the rule ”, (1957), arbitrary Criminal Law rule”, Perkins, page purely “a called it mechanical test Halsbury, from ancient times.” has been handed down (Hailsham England” Ed.), in his “Laws of Vol. 9, presumption p. “It an irrebuttable said: is §734, of that is cause law the death attributable some other punish- injury the is and the who inflicted not manslaughter.” murder able good appears A on reason for the in Warren rule says, (1938), Homicide Yol. author where the §80, quoting person alleged “. . Coke: . if to have the been murdered ‘die after cannot be dis- that time, presumes, he as law whether died cerned, poison, etc., case in or a natural stroke, death, ” ought of a rule of law to be certain.’ life, concept change legal The not rule does of process being only prevents facts of the case but had upon them not under certain conditions. It should part any be considered crime definition more than should the rule no less venue: it is .of prosecution may county A in be had county but in B. It War- Coke’s and clear, lay ren’s statement that the for the reason above, primitive knowledge state of medical at Judge suggests time, or it been, Gordon mitigate rigor designed that it was Eva/wl, old exacted life for man- murder and slaughter indiscriminately. judicial
We can take notice the far advance since 1776 scientific crime detection and of scientific medi- dealing cine. We are not of the basic and living rights right of a like the to confront defendant, right presumed his to be accusex*, innocent, right process dry due of law. A rule becomes when supporting evaporates: legis its reason cessante ratione lex. cessat There is now no more reason for a rule of a than there for one of a hundred days nights. or a thousand and one rule, Appeals People York New Brengard, Court said supra (265 100), “arbitrary span N.Y. is an of time which was fixed the common be- and this law”, knowledge cause the limited medical of the times. A modern rule should be based on causation in the light knowledge. Society prosecute of current is free to *9 statutory pos- murders without a it limitation, 174 during a may be lost witnesses
sible that evidence and long therefore trial. It is crime and interval between upon put strange time no restriction of not a idea to require proof only of the death of victim to quality the trial. conventional at causation of change live. it cannot If cannot the common law (1892), said: 148 we In Pa. 98 Commonwealth v. Hess, legal de- principles, great which has “If mass were law, common the name of the cended to us under wholly composed only of iron-clad would rules, present age generation, and unsuited to only changes place, great in not have taken conducting it. but in mode volume of business, accepted principles constantly applying are We doing phases common to new and modes neсessity, com- This is a alike dictated business. and the trade . mon sense necessities of . .” Pa. 158 And Jackman v. Rosenbaum Co., (1919), A. affirmed S. U.S. 238; 43 Ct. principles “The common said: fundamental we unchange expansion, to liable in essence while are law, applicability given neces conditions but their able, usage sarily according changes wrought by varies thought, statutory pursuing and, enactment; development today trespass, may, by is a what of law, not be so tomorrow. . . .” (1930),
In Nesbit v.
175
and abolish it
tion,
are
modern
when we
aware that
beyond
conditions have moved
left it
and
sterile.
App.
In People Div.
The order is affirmed.
Mr. Justice Cohen dissents.
Concurring Opinion by Mr. : Justice Bell Defendant-appellant was one indicted on two bills, manslaughter. for murder and one for Both indict- allege September ments that on or about 21, 1958, Philadelphia County, Boy arms, with force and Ladd, feloniously, wilfully aforethought, and with malice as- Dorothy saulted wilfully Pierce and malice and with aforethought, killed and murdered and another her; charged Boy count feloniously, wilfully Ladd aforethought, gave malice Dorothy Pierce mortal wound from which mortal wound she died on No- quash vember 1959. Defendant moved to in- dictments because death year occurred more than a day and a after the consequently stroke, he could under the not, common law definition of murder, guilty manslaughter. of murder or The court below appealed. overruled the motion and defendant agreed are question We all the crucial part whether the rule is of the present Pennsylvania. law of Mr. Justice Bok and Mr. Justice Musmanno have made an exhaustive review common agree law murder.* I with Justice Bok’s conclusion, * compliment We must counsel excep- defendant on Ms tionally able brief. route. different that conclusion very
but I reach I am convinced of the authorities From examination my part common at law, that the was, indispensable essential an parcel absolutely —and murder: the substantive parcel part —of Sir (1278); 6 Edward Ch. 9 Statutes of I, Gloucester, 3rd Chief Justice England, Lord Edward Cohe, (Circa Institutes of Ch. page Laws England, VII, page Ch. Commentaries, IV Blackstone’s 1620); *11 Ed. 8th Vol. “Pleas 197; 1, Hawkins Crown”, the of Stephens’ History page 93; Ch. (1824), 13, §9, Bussell’s of Vol. pages 8; Criminal Law England, 3, 7, of Laws Halsbury’s 7th page 690; Law Crimes, Ed., Chitty, Vol. 2nd Ed., page 428; §734, England, 9, Ameri Vol. Wharton’s page 276; The Criminal 3, Law, Homicide, on can Vol. Warren §1073; Law, 2, Criminal 605; Perkins on Criminal 60; page Vol. page Law, 1, §46, 26 Am. 856; Jur., §12, page C.J.S., Homicide, Louisville E. & L. R.R. Co. v. St. page 190; Clarke, U.S. 230. quotations
A few will suffice: said: “Murder is when a man Sir Edward Coke unlawfully sound age discretion, memory, reasonable the realm killed within any county natura under the creature rerum king’s peace, or expressed either malice aforethought, party, &c. or so as implied by party hurt, law, wounded, &c. a and a wound, year day die of within hurt, after same.” 197:
IV Blackstone’s Ch. page Commentaries, 14, requisite order also to make the murder it is killing “In die a a that within year day party or cause of death administered.” received stroke Laws of Vol. Ed., In 2nd Halsbury’s England, 9, appears: “If death following does page 428, §734, of a expiration day until after the and a year not ensue date was it is an injury when inflicted, presumption at- death is irrebuttable that the in- who other and the tributable some cause punishable injury either not flicted manslaughter.” page it is 7th In Bussell’s Ed., Law Crimes, person can convicted “Time of Death. No be stated: manslaughter does of murder or who another, year day received, after the stroke die within computation of of death administered cause upon day the hurt done is the whole which reckoned the first.” In Wharton’s American Criminal Yol. Law, (6th Ed.) upon which “An indictment is said: §1073, appear happened it does not that death within given fatally after the wound was the death not ensue defective; when does because, within a after the wound is inflicted, proceeded presumes other the law from some cause.” January
The Act of 1 Smith’s 2-8, Laws provides: every 46 PS “Each and one §2, §152, general assembly or acts of laws in force were *12 binding province on the inhabitants of the said on May binding 14th of last shall be in force and upon of the inhabitants this . . state . and the com- England such mon law and of statute laws of provinсe. heretofore been in force in the said . . .” presented question: We are then with the theWas year part rule common of a law and a of the Province or common law of the Commonwealth Pennsylvania changed in 1777 and if has it been so, changed? My or should it now answer to the first question part of this is that there is no Statute or Supreme Pennsylvania decision of the Court of which May created on 1722 expressly which by was 22, or implication necessary holds that and a part is or ever was Pennsylvania; rule law Í78 contrary numerous decisions this Court
on negate clearly the existence of “murder” their definition such rule. that the common is not law is hornbook law as the of the Medes and immutable law not as was development gradual law was Persians; changing changed Murder slowly conditions. to meet Common- defined the Courts been has often repeat never been to include has defined but we wealth day, consequently rule of part element or of the substan- an essential is not Pennsylvania. law tive Pennsylvania say that murder
It is inaccurate adopted orig today is common law was theory inally our of murder definition in 1777. Our initially today, and even with cer derived from, were largely exceptions hereinafter referred are to, tain upon law.* In Commonwealth v. the common based 113 A. Pa. 2d the Court said: 464, Bolish, anyone theory of the common law who was “The possessed legal felony** common committed killing naturally resulted therein and where malice; though killing even uninten was therefrom, legal malice was carried over accidental, tional original felony original and the felon guilty of murder. killing If there was an unlawful
“To summarize: express implied, (legal) that will con malice, * Drum, 9; v. 58 Pa. Cf. Commonwealth Commonwealth 464; 500, 510, Thomas, 2d Bolish, A. Commonwealth v. 381 Pa. 204; Guida, 117 A. 2d Commonwealth v. Pa. 341 Pa. 305, 19 98. A. 2d ** *13 felonies, namely, murder, were 8 or 9 At law there common robbery, rape, sodomy, manslaughter, arson, larceny, burglary, and Crimes, mayhem: (4th Marshall, & perhaps 1940) Clark §3 ed. : 1 (12th Wharton, 1932). §26 Law ed. Criminal
179 though in stitute murder there no intent to even jure particular person or kill the and was killed who though accidental: even his death was unintentional or prior [citing 12 Blackstone decisions of this and Court, authorities].n text numerous Pennsylvania
Murder in is common law (a) changed by Statute, or or as extended modernized (b) interpreted applied con to modern and and Supreme For Pennsylvania. ditions of Court (1) (a) example, Legislature that has declared resulting trainwrecking death from is deemed to (b) accidentally, resulting and murder;1 that death unintentionally law or from the common otherwise kidnapping (c) misdemeanor of and that murder;2 resulting accidentally, unintentionally death other perpetration perpetrate attempt wise, statutory statutory burglary,4 statutory and arson,3 rape5 (each common at which was misdemeanor (d) murder) felony not a murder; law and petit (e) killing treason is that a murder;6 prisoner attempt during of a an to rescue or release (f) authorities is murder;7 him lawful per killing any person by a mob of three or more acting (2) sons This violation is murder.8 important (a) changes felony has Court also made 1 Johnson, 139, 569; Commonwealth v. 368 Pa. 81 §§701 A. 2d 1939, 872, §§4701, of the Penal 18 919 Code P.L. PS 4919. 2 §701 the Penal Code of 1939. 3 Bolish, Pa., supra; Commonwealth v. 381 §§701. and 905 of Penal Code 1939. 4 1, 707; Maloney, Commowwealth v. Pa. 73 A. §§701 365 2d Code of 901 Penal 1939. 5 Gossard, 239, 902; Commonwealth v. 383 Pa. 117 A. 2d §§701 and 721 of the Penal Code of 1939. 6 Section 702 of the Penal Code of 1939. July Section Act P.L. 1477. July 8, (a), Section Act P.L. 1477.
180 of (b) the definition has modernized and murder;9 murder.10 authoritatively Pennsylvania first
Murder in
was
v.
in
of
Drum,11
the famous ease Commonwealth
defined
(1868)
murder
: “At the common
58 Pa.
memory
and
of sound
described
when
be,
in
unlawfully
any reasonable crеature
kills
discretion
peace
being
and
of the Commonwealth,
under
implied.”
expressed
defi-
aforethought,
or
This
malice
since.
nition has been followed
substance ever
most
v.
to the
recent
From
Drum
Commonwealth
has
Court,
decision of
element of
a substantive
been an essential
or
never
part
Pennsylvania.
murder
What
of the law of
origin,
rule?
the reason
for the
basis
was
knowledge
(a)
a lack of medical
Was
based on
(b)
later
or
it an alleviation
medieval and
was
times,
origin
rigors
(c)
of the common
or
its
law,
persons
protection of
crime
accused
this heinous
died
at a
their
or dis
time when
witnesses
(b)
(a)
appeared, and hence a rule of
substance,
(c)
limitation?
In
of the limited
view
evidence,
knowledge
medical
of those times and the definition of
supra
given
by leading text
doesn’t
authorities,
likely realistically,
logically, and authorita
it seem
—
tively
ran
the rule was substantive if the rule
—that
(as nearly
leading
from the stroke
all the
authorities
did),
procedural
said it
or limitational
evidential,
if it ran from the death of the
Cf.
Sir
victim?*
also
majority,
concurring
opinions
dissenting
See the
Redime,
in Commonwealth
391 Pa.
It is clear from the authorities herein cited that light rule is not and in the medical knowl modern edge part Pennsylvania’s should not abe substantive *15 justi law murder. there can be no Furthermore, today year fiable reason for the and a rule as procedure irrespective rule of evidence or or limitation computed of whether the time stroke be the fatal or from the death of the victim.* approving
The reason for of evidence as a rule appear. respect clearly does not With to indictment prosecution, may or a murder or not be discovered, identity may of the killer until not become known public more than a after the au- or the crime, apparently years thorities not discover for an supposed natural death or a suicide an resulted from killing. Why unlawful should a murderer receive protection antiquated of this common indictment evidentiary Society and further rule, be shackled already handicapped heavily fight its against in killers? safety, protection, Society and the welfare paramount, require are and that there no rule prose- evidence or of limitations for murder or for the simple cution of the murderer. It is as as that. authority support
Furthermore, if be needed to such obviously just an position, wise and it can be found §77 by §1 of the Act of March 31, 1860,** amended indisputable that until the death of the victim and there is not cannot be a murder. * The crime of murder does not exist and cannot arise until a being killing by human dies as a result of an unlawful another being aforethought expressed implied. human malice indisputable that until the death of the victim can- there is not and be a murder. §211.
**P. L. 19 PS of The Penal Code of Common- April 6, 1939, wealth v. 211 Pa. 1070. pro- 60 A. The Code Dans, in- limitation in vides in there shall be no effect dictments murder.
In the Dans the husband of Mrs. Danz, case, arsenic of chronic died on June defendant, 27, 1901, death. It was believed he died a natural poisoning.* his removed death, two his Nearly body years arsenic from the and traces of exhumed grave found. Danz for mur poison were Mrs. was indicted der on June 1903. The evidence of the Common wealth was controverted aggressively disputed, If the legally. factually, medically denied — applied Pennsylvania —either rule of evidence or a rule of procedure limitation, have been urged applied would in that case. Never Mrs. Danz’s conviction of theless, in the first degree was sustained unanimously by Court.
This opinion could stop here were it not for definition of majority’s murder. That definition —taken quite majority (although verbatim) from the controversial case of highly Commonwealth v. Redline, 391 Pa. 137 A. 2d 486, 493, (which was in sub stance the same as the murder-definition in Common wealth v. “a Drum, Pa., supra) felonious homic —is: ide** murder) occurs (i.e., when a person of sound * The Commonwealth's circumstantial evidence indicated de- placing antimony fendant had been in her husband’s food drink and years for several before his death and this or had contributed to accelerated his death. ** majority opinion The Redline quoting was here from Black- stone, distinguishing who was (1) a felonious homicide from a
justifiable (2) homicide, and supra. an excusable homicide. See Moreover opinion connection discussing Redline was “felony-murder”. discretion,* feloniously unlawfully memory and and sovereign peace any being kills human aforethought.” prepense or malice, employ (if why it can In order to define murder, expres avoided) antiquated verbiage, or or be words today meaning, a different instead sions which express language using clearly and modern words which explain jury analyze is murder”? “what Let’s majority’s place definition. In the first there “sovereign” Pennsylvania States in the United today, why so of America it? next mention In the judge place, jury does not know can a trial how explain clearly jury meaning to a of “felonious” in killing by poison, stabbing, lying wait, premeditated killing? other deliberate and wilful Fur it is inaccurate to “feloni thermore, limit murder to a killing, killing resulting ous” since it includes aggravated battery an assault and is a mis §709 demeanor. Cf. of the Penal Code of Com monwealth v. 365 Pa. In Dorazio, 291, A. 2d 125. other isn’t majority’s “felonious” as words, used in the misleading confusing definition, and inaccurate? prove- Commonwealth Next, does not have to majority’s implies definition it must— person the defendant “a memory of sound jury Judges discretion”. No and few would agree upon able what is meant “a memory sound they interpreted if discretion,” are literally; judge explain how could a trial a —and jury accurately aptly meaning of these words? *17 contrary present If these to ordinary words, their popular meaning, merely (as they mean I believe mean) person a who is then majority’s “sane”, definition is erroneous because the Commonwealth (we repeat) prove does not have to that an accused
* throughout, Italics ours.
Í84 369 Carluccetti, v. sane: Commonwealth murderer was v. Iacobino, 85 A. 2d Commonwealth 391; Pa. 190, 823. Pa. 178 A. 65, speaking the Court v. Carluccetti,
In Commonwealth
(page
Chief)'
present
through (the
said
Justice Jones,
recognized normal
legally
199)
sanity is the
: “As
given
beings,
existence
its
condition
human
presumed. Consequently, the burden
is
instance
charge
proving insanity
to a criminal
as a defense
upon
asserting
upon
is incumbent
the one
it.
It
alleged
mental condition
defective
him to establish
preponderance
Common
the evidence.
a fair
most accurate majority opinion, but which was is stated v, 365 Pa. in Commonwealth set forth Buzard, 2d Commonwealth 76 A. Bolish, supra; “Murder is defined as an unlawful 381 Pa., * (cid:127) jurisdictions disagree leading Many text authorities some with this view.
killing
being]
afore
malice
[human
of another
with
express
implied.”
“malice”
thought
The word
legal
agreed
legally.
universally
that
is used
It
is
ingredient
only
murder,
malice is not
an essential
distinguishing
criterion
is the hall-mark and
legal meaning
so
murder.
its
which is
Furthermore,
explained
easily
clearly
well
can be
established,
jury.
Pa.
See: Commonwealth v.
Bolish,
leading
(and
Why easily stick this clear and understand- able definition of murder?
For each and all of the aforesaid I concur reasons in this affirmation of Court’s the Order of lower quash court which overruled a motion to the indict- they ments because showed on their face that death occurred more than a and a after the fatal blow.
Dissenting Opinion Mr. Justice Musmanno: The. decision of the Court in this case is unneces- sary, incongruous, disruptive accepted criminal procedure. regard precedent without shatters, legal firmly a rule that is as en- rationalisation, trenched criminal law of our Commonwealth presumption proof beyond of innocence and the required guilt. reasonable doubt to establish From concept time immemorial it primary has been a subject murder cases death, fall must indictment, within a striking after the supposedly blow which it is attached. destroys of this Court doing justice, does sans sans so, and, so, reason, logic, authority, and sans sans having charged Boy The defendant, Ladd, *19 September 18, Dorothy on Pierce on inflicted blows the allegedly, as November died on 1959, who alleged result of these The Commonwealth blows. charge on a The defendant indicted Ladd of murder. ground quash the on the indictment moved predicated battery oc- cannot a murder be on prior year day date a a to the curred more than and the of The trial court refused and death. motion, appealed. action This Court affirmed the defendant of court. the lоwer year-and-a-day an- rule in cases is an
The murder English early provided cient one. 1278 an statute As charge there could no abatement of a of murder be party aggrieved if “shall sue within Year (Statute Day done.” Gloucester, after the Deed of Chapter IX). (1278), 6 Edward English legal great authority, Sir The Edwabd page Chapter VII of 3rd Institute, said Coke, memory, of man of sound 47: is when a “Murder any age unlawfully of killed within discretion, county rerum reasonable creature in of the realm forethought, king’s peace, malice natura under the expressed implied by party, or so either law, party or <£c.die as the wounded, hurt, wound, of year day &e. or within same”* hurt, after England, Halsbury’s 2nd of Volume In Laws appears: “If page following §734, Edition, expiration until after the of a not ensue death does injury day inflicted, the date when presumption death law that the irrebuttable it is an person to some other cause and the who is attributable * throughout, mine. Italics punishable injury is for either
inflicted the manslaughter.” (English) Edition, 7th In Russell’s Crimes, Law page No “Time Death. the author states: manslaughter an- convicted murder can who does not die within other, administered
the stroke of death cause received, upon computation which the of which the whole done to be reсkoned hurt was first.” Pennsylvania Assembly, its Act The General proclaimed January common that “the 28, 1777, England, here- as have and such of the statute laws except province, tofore been in force the said binding” excepted,” “in hereafter force would be year-and-a- Pennsylvania. on the inhabitants *20 part day the of Penn- rule became criminal law thus sylvania very infancy Commonwealth, in the of our excepted it not in the statute 1777. because was accepted throughout generally the rule is This Law, In Wharton’s American Criminal United States. upon it which Yol. we find: “Indictments 2, §1073, happened appear year the within a does not that death given day fatally the are de- and a wound was not ensue because, the death does within fective; when year day after the is a wound the law inflicted, proceeded presumes it other that some cause.” from carries Warren on Vol. the state- Homicide, §60, general proposition, a ment that: “As criminal homicide taking being of the life of one human the is unlawful such a manner the another in death occurs year day dealing the and time within mortal toound. But death does not occur if than one and until more has it intervened, presumed injury that the wound or received not person and death, the cause who inflicted it responsible criminally held cannot be for the homicide.” accepted Corpus universally authority, Juris That says: absence “At common Secundum, and law, providing, of statutes otherwise more than a if injury intervene between the the death injury legally is not cause deemed the victim, who crim- death, inflicted inally responsible (40 Homi- homicide” C.J.S. 856). p. cide, §12, Majority attempt
The does not au- to refute these point legislative thorities. It does not enactment puts naught at which the Common Law which, Pennsylvania Legislature enactment of the Pennsylvania. statutory has in effect become law simply dogmatically been announces has what Pennsylvania the law of ever since there Penn- was a sylvania, going what was into the back fogs mists of the formation of com- our basic longer. mon shall law, now be law To be sure, Majority before it announces this drastic decision, Opinion does take us on a a rather tour, uneven tour, up ancient and modern works and ends station at a called: Ias “Therefore,” view is not which, at all the it, logical pre- journey natural and terminus of the ceded it. Opinion parados. is a au It cites
thorities which it does not refers cases follow, which contradict its main and directs attention thesis, *21 Supreme to a United States Court decision which, the completely extent that it is relevant, shatters the position. quotes Majority’s paragraph from a in the case of Louisville &E. St. L. R.R. Co. v. Clarke, 152 U.S. follows: “In 230, cases of rule the undoubtedly at commonlaw was that no should adjudged, ‘by any be act whatever, kill another, who does not die it within a there computation in after, whereof the whole on which the hurt done shall was be reckoned first.’ 1 Hawk. Comm. 41 Bl. P.C. c. P.C. c. 13; Hawk, 23, §88, paragraph. complete The the but 306.” it does language: paragraph of that this vital rest contains the assigned that if “The for reason that was person alleged ‘die after been murdered presumes, the law it cannot be time, discerned, poison, aor stroke or he died the whether etc., ought to natural in case of a rule death; and life, rule in this is the certain.’ 3 Inst. 53. And such except jurisdic- country prosecutions murder, for prescribed by may he tions where otherwise statute. State v. Sorrell, Wharton’s Amer. Cr. §1073; L. (N.C.) 139.” Devereux Law highest pronouncement the the we have
Thus, recog- year-and-a-day rule is court in the land the except throughоut where nized United States, changed by it has not we know statute; and, course, changed Pennsylvania. by statute in been possibly I do not see can derive how support position case. for its from the Louisville begin a civil case not a criminal To was with, plaintiff brought trespass be- action case. The had Augustine allegedly cause of death one Clark, through negligence caused Louis- defendant, & ville Louis Bailroad A statute Indiana, St. Co. provided: “When State the accident occurred, wrongful the death of one is caused act representatives personal omission of another, against former maintain an action therefor might action, if former have maintained an latter, against injury he for the had latter an lived, same act or The action must be commenced omission. years.” ‘within two injured decedent on November February 1888. died The railroad contended
that since death occurred more than day following injury action of the executor *22 Supreme United was ill-founded. The 'Court year-and-a- that of a States said the common rule law applicable place, that first in the was because, applied prosecutions rule for murder, prosecutiоn. nothing action to do with criminal had express And in the Indiana “in then, addition, statute, representative gives personal years two words, to sue.” within which emphasized position Supreme Court its in upon
following language: diamond-clear “The reasons applied which the rule of a in were apply cases at above-mentioned common do not pure proceedings force with the same in civil in- that punishment. repeat that, volve element . . We by wrongful where death was caused act or omis- right personal representa- sion another, suing benefit of the tive, and children widow damages or next of to recover on kin, account of such complete under the as- death, statute, brought by any years serted action at time within two from the death.” it must be obvious that Louisville case
Thus, any precedent cannot under circumstances be used for the facts case at bar and that, moreover, year-and-a-day extent it treats specifically already I cases, as have declares, accepted rule is stated, all of the United except abrogated where has been States, statute, repeat, I we but must know, has not done been Pennsylvania. Opiniоn quotes And then the Supreme opinion single Court sentence in isolation, prosecutions namely: “In for murder the rule one simply of criminal evidence.” reading But a Supreme opinion entire States United Court shows that the Court did not intend that statement in modify way unambiguous its declaration taken from *23 “In c. Bk. 13, Hawkins’ the Crown, 1, Pleas undoubtedly common law of murder the rule at cases adjudged ‘by any act was that no should be by it within not die kill another does whatever to who day a . and a thereafter. paradox. Opinion repeat Majority is a I that the quotes length State, of Head v. It at from the case App. the Court 68 Ga. 2d where S.E. 145, 759, States Appeals Georgia of all the “The courts said: question one ac . have . . with that have dealt with the year and results within cord held that unless death mortal infliction of the the from the date of homicide.” it is not criminal wound quoted by Ma- Georgia says, the then Court reasoning Opinion followed jority “The this case that: jurisdictions will majority of the the in the courts expressed Dailey, Ind. found in State well supra,” it then 20 A.L.R. 134 N.E. supporting goes the rule in on to cite decisions Con- California, States Alabama, Arizona, Arkansas, Kentucky, Massa- Maine, necticut, Illinois, Indiania, Virginia Oregon, Nebraska, Texas, сhusetts, Montana, excluding Washington, Su- decision of the not preme States. Court United writing Judge In this same case, Gardner, quotes approval, 903, §208, 13 R.C.L. with Court, appear namely: “If it that the death does not happened person charged to have killed within given, indictment after the wound fatally does since death deemed when will be defective, presumes time such the law ensue within proceeded cause.” some other Crim- Judge to Clark’s then calls attention Gardner p. “to effect.” the same ch. 7, inal Procedure, Georgia citing case of Head v. State, After year-and- supporting impressive list decisions its Opinion Majority at bar a-day case rule, accept adds rule, the names of other States which namely, Michigan, Wash- North Louisiana, Carolina, ington and Tennessee. acknowledg-
One think a formal would that, long distinguished array ment States of this accepted year-and-a-day rule law the Majority (and complete), the list is means accept Pennsylvania would either rule be- here overwhelming weight authority, if cause of this or, opposed opposed. why But would show it, sequitur, says, does neither. almost non that: “No case our within research has built *24 point beyond indi- into the definition of murder cated.” quoting Majority says,
What this mean? The does Michigan (Chapman Mich. People, 39 from a case (1878)) injury never : “The is which causes death regarded constituting or man as the crime of murder slaughter. only within The death of the not victim jurisdiction day, a a but also within the same distinguished controlling was the element which guilt a common The of the assailant from assault. place always time were as death considered required necessary to averred be and were to be averred, (Emphasis independent of the averment of assault.” as Opinion.) Majority simply stating is is white But this white “injury causes Of black is black. course, regarded constituting as death never the crime is manslaughter.” injury The must followed ihurder be emphasizes Majority by an death. The actual place always of death considered “the time and were necessary strange be but is about as to what averred,” must time course, that? Of be averred. Time necessary in order to death determine whether the after the occurred within assault, place of death mast to show be averred in order jurisdiction. that the has Court attempts explain Majority
The why the cases frequently analyze vear-and-a-day did not more simple rule. The answеr is one. There no neces- was sity analyze clearly what stood out as as the thumb attempted explanation one’s hand. In its on the Ma- jority says: why “One reason nature of the suggested frequently analyzed may not more by Blackstone’s to Coke’s statement reference, infra, descriptive about rather than a defi- nition.”
What, Majority does this mean? The answers unspoken description question: expect “In one together only to find but unsorted not the elements requirements jurisdictional the crime of time but the requirements date of death. These latter and venue and right only prosecute, affect structure This answer eludes me. crime.” What of the crime”? “structure following says Opinion that: “The Arkansas, requirements: statutory Arizona, ates
sl Mon- Idaho, Illinois, Delaware, Colorado, California, it does but North Dakota, Utah,” tana, Nevada, *25 requirements statutory are. those not tell us what finally Majority the After nebulous discussion, this Pennsylvania namely: positive “In a statement, makes taken statutory we have definition but no we our own.” definition as Blackstonian follows: quotes definition Blackstonian murder) (i.e. a when occurs homicide “A felonious unlawfully and memory discretion person of sound peace of bеing any feloniously human kills aforethought.” prepense sovereign or malice with “there says Majority definition: that in the then why But rule.” year and a mention no is contain should it mentioned? definition be A cannot possible proving There all rules murder. involved in a rule of murder is that a man not be convicted corpus proved. words, unless the delicti other is In actually proof being there must that a human be say: killed. But the for murder does not definition of sound “A felonious homicide occurs when memory unlawfully feloniously kills discretion peace being sovereign human in the express prepense aforethought, implied, malice there existence is proof corpse it to explanation as how satisfactory disappeared” many There terms the Blackstonian definition are questioned, de- themselves to be if would need which, then included fined. Should those definitions “person murder? For what is a instance, definition of memory be a can and discretion”? There sound subject. “peace by the on that What is meant debate sovereign”? There could be heated contro- “prepense”? topic. versy A volume on that What query. me could be written on To it is or two say year-and-a-day that becаuse the untenable murder, in a short formal definition of is not included part therefore constitute of the crime of it must murder. Majority, citing the Blackstonian after
Even declaring it makes of murder definition year-and-arday concedes that then rule, reference say' that: order to make “In. also Blackstone did requisite party killing that the die within murder, stroke or cause of received, (cid:127) .administered.”- death . in doubt Seems as to whether But says, accept very statement definitive because, pages he this state- two before- made Blackstone waited hope does that I But make?- what ment. difference *26 Opinion anything say that I in this does lose separated couple pages cogency it a because is everything something possibly say cannot else. I subject page. say I on this on one Neither want to Majority. can the great difficulty grasping Majority’s ar-
gument apparently controversy in this is whole that accept up cannot its or not to make mind whether authority Certainly Blackstone as an on murder. noth- ing that: could be clearer than Blackstone’s declaration requi- killing “In also to is order make murder, party site a that the die within strolce cause of death administеred.” received, accepted authority If an on Common Blackstone is should doubt Law Law, who and if Common it, except changed part specifically of our law where why can doubt should strain over that, and who we appears page says Blackstone because it on one what subject one instead another? No can be treated in epigrammatic cannot utterance. The of murder page, hun- be condensed into one or one sentence, pages. single possibly No definition can em- dreds significance. area of its brace whole all-inclusive Dictionary man Webster’s defines as “a member of the certainly but that definition human does not tell race,” story whole man. sequitur Dissenting I mentioned non in this perfect Opinion. I believe illustration term that Majority’s treatment of occurs Blackstone’s that there can be “the statement unless party die within after the stroke re- Immediately of death or cause ceived administered.” quotation following says: “The rule part said to be therefore, definition cannot, Pennsylvania.” either in Blackstone of murder, supposed A does follow? “therefore” How logically premise, succeed certain but even if the *27 year-and-a-day conclusively
Majority the showed why is part Blaekstone definition, rule not is part of sequence not that the rule is it an inevitable Pennsylvania? the of law murder apparently about Blaekstone, undecided Still Ma- its “therefore” conclusion about Blaekstone, says: jority do we “Nor returns to Blaekstone and reading principle for Blaekstone’s reason in see body definition.” And into the his addendum go proof why not into the addendum should “Stephen, says: Majority body of the definition, page England, History Criminal Law Yol. arbitrary ‘an rule’, called the rule page (1957), called Criminal Law Perkins, ‘purely mechanical has been handed down test which Eng- Halsbury in his from ancient times.’ ‘Laws p. (Hailsham Ed.), ‘It is said: land’ Vol. 9, §734, presumption that the death an irrebuttable of law attributable some other cause and the who injury punishable for murder inflicted the ” manslaughter.’ again, Majority cannot be whether certain Here, accept Blaekstone or cites not. first wants authority supposed him as an and then cites others in says. derogation Blaekstone But I do not what see Stephen, Halsbury demol- what Perkins and said year-and- or the ishes the existence reason of, for, day rule. arbitrary Majority rule an
To call the as the one, Stephen reminds us that so called does not reduce it, justness. integrity, efficacy, Many its reasonableness arbitrary good pur- rules in are our for a pose. arbitrary, many of limitation Statutes are presumptions arbitrary, they of law are our but are experience represent- on the of mankind, and, founded they ing ages, they do, wisdom of make regularity responsibility in All law. statutes rea- lor that one them are denounces but arbitrary son. deroga- all that says
However, it sets though and even tion of year-and-day rule, time it still cannot help out to demolish rule, Thus rule. time favor saying something Opinion interesting find in the Majority we for the declaration: “A reason comforting good §60, on Homicide Yol. in Warren appears (1938), *28 per- the author Coke: ‘. . if the . says, quoting where time, to murdered’ die after son have been alleged whether it cannot be law presumes, discerned, death, or a natural he died of the stroke, poison, etc., to be certain.” in rule law ought case life, the rule, excellent reason for this giving But, to still refuses the rule. accept the Majority does not on substan- long the Majority linger But it just After statement quoted, its exposition. tive presen- the frontier of substantive crosses immediately the reаlm of nebulous and enters once more into tation con- does the legal dissertation: “The rule not change prevents process of the facts of the case but cept only them under certain conditions.” had being upon not The does What ai*ethose conditions? Majority say. on: “it from Coke’s goes
The Majority clear, that the for the statement x-eason Warren’s above, at the state medical knowledge primitive in lay time . . .” is “clear,” statement of what
After this positive as Judge ham then adds: may been, “or, Majority to miti- in that it designed sxxggests Evaul, Gordon life that exacted a of the old law the rigor gate manslaughter indiscriminately.” been” it alternative “or With “clear” to the whether is not Majority that it apparent accept and Warren’s or should not Coke’s it should about the rule. statement despite indecision all vacillation and
However, thing. Majority one is determined on discussion, right adamantly It is resolved to do what it has no change namely, to to on a fundamental do, persons. right of accused recognize funda- not seem to does how attempted says, year-and-day
mental rule is. dealing mitigation of its are not drastic action: “We rights living of the basic and of a defеndant, right right be like the confront his accuser, presumed process right or the law.” due innocent, right
But what could more basic than the charged not to be act defendant with murder for an scope which was within of murder when com- ignores Majority absolutely grave mitted? The question question constitutional involved here, presses strenuously the defendant raises and his appeal. Pennsylvania Article section 9 of the Con- I, provides prosecutions stitution in all criminal *29 deprived liberty the accused shall not be of his life, judgment property peers “unless the of his or the of the land.” The of law law the as land, written, recognized, interpreted practiced Boy at the time charged injuring Dorothy Ladd was with ex- Pierce, occurring cluded indictment for murder for a death allegedly injury more than a after the causing charge her death. To now him beyond period for a death which occurred the of limita- part prose- the tion which land is to post designate cute him on an ex facto basis. It is to murder an act which as murder when the al- leged alleged aggression defendant’s victim died. ignoring
Wholly highly this vital constitutional disposes question, Majority of the whole issue with legis phrase: oessat lex, a Latin cessante ratione supporting interprets: dry its “A rule becomes when evaporation evaporates.” I have reason But seen pointed Majority supporting nor of its has reason, evaporation rea- supporting The reason. gave ever, is as valid to the rule son which birth part of the criminal law and the rule is as much of counsel and assurance Commonwealth specification charges. need for speak this Majority of the facts in does not pneu- alleged Dorothy died case. Pierce, victim, possible, It is that her weakened monia. of course, alleged received thirteen due to the hurt condition, susceptible to the attack made her more months before, likely pneumonia. other On the there is hand, pneumonia possible possibility connec- that the had no injury allegedly by the defend- tion inflicted ivith ant. years
Suppose pneumonia occurred two proper to physical injury, it still be would charge the If a murder defendant with murder? brought years charge been after a blow has can be two may be a the Court will there ever time when struck, bridge death between the declare that blow irreparably May the Common- has broken? now been occurs for murder when the death wealth indict a man Twenty years? years after the has fallen? ten bloiv Opinion Majority Thirty years? One search the phrase through every paragraph, sentence, clause, ques- very serious and find no answer to comma, open content to a Pandora’s tion. The interrogation to the remain unclosed, box and.let persecution possible every who torment *30 injured may I or another another. at one time “expert” be of some kind can that an don’t doubt slap, testify the cause that a face was to found years of a death fifteen later.
2G0 thing law must the criminal
If there is one specific recognized just, it must be it is to be be, if through compel person go life and definitive. To a potential hanging charge head his a over ready im- on when he is and available be tried charge violating the constitu- comes close mediate against punish- prohibition tional cruel and unusual important guar- ment. One of the constitutional most delay speedy to an Would a antees accused is a trial. years speedy ten be a trial? consistency Majority’s argu- I do not see the prosecute says: “Society ment when it mur- is free to possi- statutory derers without a it is limitatiоn, may during that evidence and witnesses be lost ble long interval between crime trial. therefore strange put upon not a idea to no of time restriction require proof only the death of the victim and to quality causation of conventional at trial.” If possible that evidence and witnesses lost during long why interval between crime and trial, then should this Court remove all restrictions on such proof indefinitely so as to extend the time between alleged allegedly resulting blow and the death that blow? Majority given single
The has not one consistent abolishing proved rule for & rule which has itself, the crucible of just, to be necessary time, fair, protection rights of the accused. Ma- The jority logical has advanced no legal, historical, rea- destroying son for practically rule which the whole- accepted United States has as reasonable, fair, just. presented convincing has argument why Pennsylvania as to should make so radi- change processes orderly cal of our criminal law.
And justification aside from the then, utter lack of changing that, it is rule, clear to me. .Court *31 If change absolutely authority the rule. to lias people changed, the rule is to it must done be be representatives General through their chosen representatives not Assembly. The fact that those convincing evi- years rule rather touched the in 177 is good they dence that whole- believe the is today, one. this Court some But its decision of Capitol moving usurp do on to Hill to functions which today, this belong By all. it at this decision judicial legislating guise inter- Court is under the pretation; engaging writing it which, is statutes government, entirely under is outside our form province judiciary. of the nothing Majority doing
What the case is is in this power. despotic usurpation short of untrammeled changing taking away It con- is the criminal law, is mockery prerogatives, making stitutional it is adjudicated defying law of cause effect. is spurning it is the text books cases, nation, ignoring authoritative almost the entire treatises and subject. library of literature on the age supposedly all this How can be done in this of a appreciation rights more sensitive of the accused wrapped enveloped mystery, is a in a in an riddle, enigma, labyrinth inexplicability. and concealed in a going arbitrarily If this Court rewrite criminal separation governmen- law in defiance of the classic Legislative Department powers, tal made should be pre- aware on encroachment its constitutional rogatives jurisdiction. A and exclusive vigorously protest
I most what the is do- ing emphatically Opinion. dissent from its