*1 an abuse, shows case which the here, —which court below took no precautions remove the preju effect. “It dicial is well established that state any ments by counsel, based on which tend evidence, them influence issues before resolving an solely passion im by appeal prejudice are proper will not be countenanced. As have we stated ‘. . . verdict many occasions: obtained incor by rect or statements unfair or an argument appeal or stands on little passion prejudice but higher ” than ground testimony one obtained false . . .’ Nar ciso Mauch Chunk Township, A. 2d 233.
Judgments reversed and new trial ordered. Appellant. v. LaRue, *2 November 1954.
Argued Before Stern, J., C. Mtjsmanno Stearne, Bell, Ar- Jones, Chidsey, JJ. nold, him
G. with L. for Wesley Allen, Fitzhugh Styles, ¿ppellant.
Victor Assistant Wright, District with Attorney, him Michael von Moschzislcer and Samuel First Dash, Assistant District and Richardson Attorneys, Dilworth, for appellee. District Attorney, March Allen M. Opinion Stearne, Mr. Justice 14, 1955: of murder conviction an from a appeal
This is at death. fixed the penalty the first with degree of the accused defendant, LaRue, Alphonso She Walker. Mildred murder of deliberate wilful and fatal numerous with in her found dead bedroom, suc- accurately It was body. wounds on stab opinion Judge the learned trial stated cinctly Com- evidence that “The new refusing cir- crime was to the linking monwealth part the most consisting for character, cumstantial other the deceased of the son of of the testimony de- statement signed witnesses, together after police had obtained by fendant which been *3 he had that of Defendant denied the arrest defendant. produced Mildred and the evidence Walker, stabbed suicide; had him that deceased committed suggested of the de- that argued and defendant’s counsel son mother.” of opportunity stabbing had the ceased both the law and We have reviewed evidence neces- ingredients this case to determine whether were constitute murder in the first sary degree v. 363 Pa. 69 91, to exist: Commonwealth proved Davis, 82 A. 2d Commonwealth v. 368 Pa. 123; 157, Carey, A. 2d 240.
The test of of circumstantial evidence quality to convict of murder in the necessary degree one first Drew stated Justice Common accurately wealth v. A. 2d Bausewine, 40, 354 Pa. 46 491: 41, 35, . . the mere fact adduced “. While evidence is not fatal wholly circumstantial Common wealth’s case v. 350 Pa. (Commonwealth DePetro, 567, A. it be 577, 838), yet 39 2d must' remembered that conjectured. must be The rea guilt proved of be on sonable inference must based facts and guilt 116 it cannot rest on suspicion
conditions proved; solely or surmise. These do not take the of place testimony. The and circumstances in order to proved facts must, warrant a be as to establish the conviction, such guilt . . . as in defendant, being absolutely [not] with his but at a compatible beyond least innocence, reasonable doubt. '. . .” See also: ex rel. A. 587, Garrison 106 2d Burke, 344, 348, and Commonwealth v. Kloiber, 412, 427, A. 2d and cases therein. cited 820, produced by evidence Commonwealth was the deceased died a result wounds in- stab flicted at her July on home at South 57th Street The Coroner’s Philadelphia. physician inter there alia, were twelve testified, wounds of the deceased. Two body of these wounds were inflicted from one entering right side behind, the back penetrating kidneys other en- left shoulder. The son tering of the deceased, boy years seventeen testified that he age, came home shortly after 10 P.M., July 30, and heard the He appellant talking upstairs. his mother heard scream and ran upstairs and saw her lying the sec- ond floor front bedroom. He ran out of the house to catch the but trying appellant, was unable to do so. Three photographs front bedroom window and street were introduced into and the de- evidence, *4 ceased’s son stated that the photographs represented the conditions as they existed on July 1952. The 30, deceased’s son further testified that appellant and de- a ceased had quarrel sometime June and his moth- er in the appellant’s said, that presence, appel- lant had threatened to kill her. He stated the appel- lant gun had a his that he not pocket, did see it, but only pocket. saw his print He further stated that chased appellant the deceased out of the house. The son deceased’s further on direct stated, that he not other examination, present any ivas during mother quarrel between his and the appellant. in a bar
Commonwealth, side sur- pleaded discussion, prise permitted the trial over ap- Judge, pellant’s and lead its wit- objection, prompt own ness. The deceased’s ap- son also that testified pellant had threatened to that shoot he mother, had taken knife a from a can of on floor and lye made the He appellant drop further testi- gun. fied that about two weeks thereafter he ap- heard the “if I pellant say can’t have one no else will have you, Another witness for the you”. Commonwealth testi- fied that was visiting she the deceased on the night that death, she had met about appellant 5 P.M. that that he did have dinner afternoon, but that he left them, shortly thereafter came back about 9:45 P.M. She stated that the de- upstairs ceased was dressing when came appellant he and that went upstairs. She further testified that she heard the deceased scream and that she when went she saw the upstairs appellant jump out bedroom A window. testified for the Common- neighbor wealth that saw the on the appellant roof of 124 South 57th next door to the Street, house, deceased’s the appellant down dropped by his hands the steps the roof to A below. detective testified to a signed written statement on appellant of his day August 1952. He arrest, permit- ted to read this after statement preliminary question- ing by counsel. The appellant’s which was statement, offered and admitted into evidence over appellant’s recited that the appellant was objection, twenty-five he lived at 122 South years 57th age, Street, July evening after he had the deceased about her discussion with boy friend, he *5 118 “a heard he there and while into the
went lavatory, into back he went or a when holler”, more less knife in paring a room he saw white-handled the the knife it from her to wrench trying hand while fur- the appellant In statement, her neck. pierced in the sewer the knife he threw stated that ther Common- The he did so. why not explain he could ap- prior conviction further produced wealth an offen- armed with robbery for while being pellant the time of The at Judge, in 1945. trial sive weapon the jury cautioned evidence, introduction this its use. as to counsel are assigned trial errors alleged
Several
trial.
for
a new
granting
defendant as reasons
for
attorney
the district
error to permit
It was not
upon
for the Commonwealth'
a witness
cross-examine
Alphonso Walker,
son,
Deceased’s
pleading surprise.
Prior
for
Commonwealth.
a witness
was
at
statement
to the district
he
a written
gave
no
At
tidal
testified that
there was
torney.
quar
This
testimony.
in his
other than
referred to
rel
he had
his written state
to what
said
contrary
was
surprise
At
the Commonwealth pleaded
ment.
side bar
to further examine
permitted,
objection,
and was
over
fact that
testimony developed
witness.
question
proceeded
witness had misunderstood
on the
happened
previous
tell
in detail what had
the action of the Commonwealth
occasion. Since
was
and no
ad
its endeavor to discover
unfair
truth,
taken
defendant,
did
consti
vantage
v.
420,
tute error: Commonwealth
363 Pa.
Linkowski,
A.
2d
278;
Sallade,
A. 2d 528.
prejudiced by
improper
was not
re-
Appellant
of a
son
testimony
buttal
witness. Deceased’s
by the Commonwealth
rebuttal
de-
called
refute
*6
“common
was
fendant’s
deceased’s
testimony
was
law”
The witness testified
defendant
husband.
in
not his
did not
the
“boy
sleep
mother’s
friend”,
a boy
same
that his mother had
bedroom with
her,
friend
name of
All of this is
by
Huey Thompson.
conceded
rebuttal.
the witness
proper
to be
However,
testify
was
as
defendant
fight
allowed to
to
between
the boy
where
were used.
friend,
knives
Thompson,
It was not
what
was about or the lan-
fight
shown
guage used.
motion of
Upon
defendant’s counsel
stricken from the
re-
portion
improper
was
record as
buttal
jury
and the
was instructed to
it. The
disregard
rejected evidence cannot be regarded
inflammatory
as
or
to
It
prejudicial
defendant.
was stricken before
counsel addressed the
and the court
clear
gave
and forcible
disregard
instructions
to
it. This did not
constitute reversible error:
v.
Commonwealth
Petrillo,
341 Pa.
A.
19
2d
209,
Commonwealth v.
288;
Chavis,
357 Pa.
A. 2d
53
Commonwealth
158,
96;
v. Neill, 362
Pa.
67 A. 2d
v.
507,
276; Boyd
372 Pa.
Smith,
Prejudice not result did from a remark voluntary of Commonwealth’s witness. Deceased’s while tes- son, tifying chief concerning quarrels between his mother identified the time defendant, Sunday “The after he had got locked up”. objection No [defendant] was made by defendant’s counsel the trial. The at district attorney immediately directed that such an- be swers stricken from the record. in cross- Later, examination, statement repeated without ob- to jection response questions hy counsel for defend- ant. Such answers, under did not circumstances, deprive defendant the fundamentals of a fair trial: Commonwealth v. 357 Pa. Barnak, 54 391, A. 2d 419, Commonwealth v. 865; Holley, 56 A. 2d 296, Commonwealth 546; 363 Linkowski, Pa. 70 420, A. Ct. Superior v. Blose, 2d 278; A. 2d 742. 169, 165, defend- attorney district reference show- The record not conviction was error. prior
ant’s armed charge of defendant of conviction ing Common- robbery May 12, offered The learned in evidence. and admitted wealth record in stated receiving Judge, evidence, only by you “The to be considered jury: record is the penalty determine you for the purpose aiding to be you found by in the event allow degree. the first You must of murder guilty the defendant prior of this conviction of record *7 or determining in in the any way guilt influence you charge the of for which of defendant the innocence in place your no now trial. This record has standing is the until under you unless and determine deliberations the is murder of that the defendant of guilty evidence then this Then consider only you first will degree. for that of the defendant prior record of conviction in whether you aiding determining single purpose you if imprisonment shall or life the be death penalty first murder the find that the defendant of of guilty for such purpose: This was admitted properly degree.” 649; v. 66 A. 2d Commonwealth DePofi, A. 2d Lowry, to objection no to have taken appears While been 733. objection was made record, the of this admission his attorney the district by during made comments the He “The counsel jury. said argument defense about this propensities the the what son, speaks of of propensities? his He’s an armed What about defendant? a, the motion made for withdrawal robber.” A was motion and his charge In the refusing the juror. great emphasis reiterated with trial Judge be considered conviction was prior matter of cir- these penalty. Under jury solely fixing preju- not were cumstances rights diced. emphasize
The trial did not Commonwealth’s Judge Defendant case and minimize that of defendant’s. there despite denial of alternate claims, defense, existed a committed possibility deceased’s son homicide and that the court scant attention. gave this This contention is so without substance that it clearly does merit discussion.
There no error one of defendant’s refusing for points Defendant charge. requested Judge “While charge: you may intent presume specific to kill from death numerous wounds resulting body of dangerous inflicted a deceased, such a weapon, presumption may destroyed be by evi- dence of circumstances emotion- indicating frenzied, ally upset or state mind.” disturbed, request refused. It stated: “To constitute a was, however, pre- meditated must murder, find from evidence the fully formed purpose to with so much time for kill, deliberation and premeditation as to convince them is not purpose the immediate offspring rashness, impetuous temper and uncontrolled passion, *8 and that the mind has become fully conscious of its own There design.” is no merit to this objection.
Failure of the trial
to submit
Judge
jury
to the
voluntary manslaughter
possible
as a
verdict was not
error. Where there is some evidence which would re
duce
to
crime
voluntary
manslaughter,
is entitled to have the jury instructed
the sub
upon
ject: Commonwealth v.
331 Pa.
Flax,
122 for that on said: “It is well settled
Maxey
in the re-
no
which
there is
evidence
murder where
manslaughter,
the offense of
degree points
motest
that
jury
instructing
in
no error
the court commits
not be war-
would
manslaughter
of
guilty
a verdict
A. 610;
191
As we understand the appellant’s argument, claimed met her death possibly may deceased have take the knife while he Avas accidentally endeavoring from her. conten- away contrary appellant’s This is tion of did kill voluntary manslaughter. he fact, If, infer he did jury stab could so wounds, in a sudden passion resentment. But his rage version on witness stand is he found deceased on the floor dead from what suicide or regarded as crime committed some one other than appellant. slightest There is if believed, which evidence, indicate that if the appellant' would committed the crime it was the consequence impetuous rashness, temper passion uncontrolled which might, the crime decision, reduce to one' jury’s voluntary manslaughter.
We have studied this record care. Judge Hagan tried case with thoughtful thorough He correctly and accurately care. charged *9 appellant every gave and consideration to which We no entitled. error. discover judgment . is affirmed.
Dissenting Opinion : Mr. Musmanno Justice punishment grave capital and The infliction of is a thing, my opinion, awesome a death sentence and, should be af- never affirmed the record shows unless firmatively rights Con- the defendant’s under the zealously stitution and the laws of the land been have guarded meticulously system saved. our Under jurisprudence, a court decision in one case becomes authority for decision over other similar
cases with principle acts or those an in- which identical highest volved. Thus, tribunal the Common- in. as I view should not a case wealth, it, hesitate to send back for re-trial an where error in law has been com- repellent may no matter mitted, how be the crime might no matter how odious seem the character of the person convicted of that crime. may
It be that if even this case had impeccably been conducted the same verdict would proper have but it could resulted, also be that, instructions the learned trial court might appraised differently. have the defendant’s fate opportunity legally Moreover, win a verdict something clap which is than less of irretrievable grisly is; doom the electric chair’s embrace some- thing every charged with murder is ..... irrevocably entitled to have.
At termination trial and before counsel up jury, Attorney request- summed the District ed the court to order defense counsel refer .“not voluntary manslaughter, provocation passion.” replied: The court you, “I so direct because I rule now *10 man- voluntary case of in this evidence is no that there provoca- of sufficient is no evidence There slaughter. neces- are both of which or passion, hot blood tion or to murder of charge reduce supply sary —to manslaughter.” error serious constituted ruling that
I believe murder law of of the conception mistaken built on un the court’s breadth of manslaughter. from his is not evident “passion” of definition spoken cover narrow to it is too it is clear that remark, but in the as expounded meaning that of word’s scope Jus Chief (later Mr. Justice Moschzisker law books. of Common Court the case for this speaking tice), “‘Passion, said: Colandro, wealth v. any .. . means manslaughter defining in a charge used rage, the mind known as anger, of the emotions in the mind rendering or terror, resentment sudden p. 6 Words & Phrases, reflection:’ of cool capable man will reduce homicide . ‘Passion which 5227. . .. either ... or terror . anger may consist slaughter slayer on the part belief The terror belief is though life is in danger sufficient, that his ” . .’ not reasonable. may the defendant any possibility If there was into his homicidal act provoked moved or have been or sudden rage resentment, because of anger, terror, that his fitted then the crime possibility there was voluntary manslaughter jury into the frame pass upon been allowed possible should have verdict. the defendant’s version “on says
The Majority that he found stand is deceased the witness from what he as suicide or crime regarded floor dead * than one other appellant.” some But committed * Majority. Emphasis by the
the defendant’s defense is not limited to what he said on the witness stand. Nor is it ad- limited to what is supports vanced his own witnesses. Whatever theory degree of innocence or reduction of crime is plea acquittal the defendant’s to use in his for or miti- gation penalty, if even it should come from the Com-
monwealth’s side of the case. accept
“In a murder case the are not bound to the version of the commonwealth or that of the de duty testimony fense it is their ; to consider all the up their make minds therefrom as to the facts. It *11 possible jury might was in this case that the have found that there was a certain amount of truth the evi produced by dence the commonwealth and truth some produced by in that but that neither side defense, * wholly (Commonwealth was to be believed.” v. Col supra, 350.) andro, Majority passing but makes a reference day
statement obtained from the defendant on the of August but arrest, 9, 1952, that declaration of integral part stage facts is an on which the dis- July killing mal was re-enacted. an From evidentiary point important of view the statement is as testimony spoken by as the oral the defendant from the witness stand. As soon as the defendant came into custody of the law he narrated events if which, jury, supply “passion” believed could which justify could a reduction of the crime from murder voluntary manslaughter: you “Q. Did and Mrs. Walker any argument you have kind anof before went lavatory? A. we Yes, had a sir, discussion about Mrs. boy Walker’s friend due to brought the that he hadn’t any money generally over Wednesday does on evening Saturday. Q. bring or up Well any did
* mine, except Italics where otherwise indicated. Mrs. you between quarrel or
kind of an argument the cause being me she accused A. Well Walker? Wednesday on around not coming her boy friend got dresser drawer in her she went money, anything said she and I can’t recall whether the knife and went I left the room at her and then but I laughed a was getting You the argument see lavatory. out me to walk made then thats what little strong you the time in at Q. was she the room. What position have the and did she lavatory came back from time? A. She was sitting hand at that knife her vanity she on the I vanity got her when back, took I to her and got the knife in her hand, bench with the knife and tried to take wrist right hold of be- off the bench but then she her, got up from away I trying from the bench while was fore got up she neck. knife from she stabbed got her, wrench onto her hand she holding got up Then I was still then dropped still she struggling the bench were we I the knife from the floor picked the knife on the floor. upstairs and told her son to go and went down stairs mother.” about his to see argument which caused the “strong”
I-Iow *12 room? much to leave deceased’s How defendant to the room and found he in fear when he returned was in hand? the deceased a knife her court lower of a valuable which right the defendant was deprived in Trial the Constitu- Jury guaranteed his under by counsel he forbade defense arguing tion when to the the de- jury. introduced evidence Was properly imputation the deceased’s it by fendant provoked friend did not deliver boy his fault the deceased’s Wednesday? Did the wo- money expected she and her of a knife drawing accusation arouse man’s to in the mind of defendant as such a resentment “cool reflection”? him These were incapable render deliber- jury’s the circle of the within questions falling contract right had no Judge ations, from the jury’s circle so exclude these questions as to consideration. this
In Commonwealth v.
Curcio,
ascer
of the
duty
jury
Court said: “The
power
in
state,
tain the
fixed
this
murder
law
degree
and a
instruction
it
takes from
peremptory
this
power
Sheets,
do
is erroneous: Commonwealth v.
197 Pa.
It cannot be said that there was in the tes- nothing timony case to reduce the crime grade of the below murder. As we said the same Curcio case: “If there is any evidence that would reduce the crime to the defendant manslaughter, is entitled to have the instructed upon subject.” In to meet attempting of rebut- responsibility ting intent presumption specific kill, to the pointed scales on which rested the evidence that the deceased had provoked him and frightened him. The court lower was not warranted that evidence from the dashing scales for whatever probative may value it have possessed.
In the case of Commonwealth v. Kluska, the defendant was convicted of killed having his wife acid throwing face. His defense was that death accidental since he had intended to use the acid for his own self-destruction and only by fortuitous circumstance did it strike the deceased. In ordering *13 new trial for certain errors committed during trial, (now through speaking M. Justice
this Court, Stern “Unconvincing Justice) ex- defendant’s said: Chief appeared planation the occurrence must have presented jury, it entitled to have he was nevertheless princi- according applicable for their consideration ples of law.” that certain evidence this case
I do not believe appli- presented to the accordance with grant principles I of law and therefore would cable trial. new
Bernitsky, Appellant, Schuylkill County. January Argued 1955. Before J., C. Stern, Chidsey JJ. Stearne, Musmanno, Jones,