47 A.2d 445 | Pa. | 1946
Argued April 8, 1946. This is an appeal from the judgment and sentence under a conviction of murder in the second degree. William H. Long, age 13 years, was killed by a shot from a 32-caliber revolver held against his right side by the defendant, then aged 17 years. These youths were on friendly terms at the time of the homicide. The defendant and his mother, while his father and brother were in the U.S. Armed Forces, were residing in Lancaster, Pa., with the family of William H. Long, whose son was the victim of the shooting.
On the evening of February 26, 1945, when the defendant went to a moving picture theater, he carried in *182 the pocket of his raincoat a revolver which he had obtained at the home of his uncle on the preceding day. In the afternoon preceding the shooting, the decedent procured a cartridge from his father's room and he and the defendant placed it in the revolver.
After leaving the theater, the defendant went to a dairy store and there met the decedent. Both youths sat in the rear of the store ten minutes, during which period the defendant took the gun out of his pocket and loaded the chamber to the right of the firing pin and then closed the gun. A few minutes later, both youths sat on stools in front of the lunch counter and ate some food. The defendant suggested to the decedent that they play "Russian Poker".1 Long replied: "I don't care; go ahead". The defendant then placed the revolver against the right side of Long and pulled the trigger three times. The third pull resulted in a fatal wound to Long. The latter jumped off the stool and cried: "Oh! Oh! Oh!" and Malone said: "Did I hit you, Billy? Gee, Kid, I'm sorry." Long died from the wounds two days later.
The defendant testified that the gun chamber he loaded was the first one to the right of the firing chamber and that when he pulled the trigger he did not "expect to have the gun go off". He declared he had no intention of harming Long, who was his friend and companion. The defendant was indicted for murder, tried and found guilty of murder in the second degree and sentenced to a term in the penitentiary for a period not less than five years and not exceeding ten years. A new trial was refused and after sentence was imposed, an appeal was taken.
Appellant alleges certain errors in the charge of the court and also contends that the facts did not justify a *183 conviction for any form of homicide except involuntary manslaughter. This contention we over-rule. A specific intent to take life is, under our law, an essential ingredient of murder in the first degree. At common law, the "grand criterion" which "distinguished murder from other killing" was malice on the part of the killer and this malice was not necessarily "malevolent to the deceased particularly" but "any evil design in general; the dictate of a wicked, depraved and malignant heart": 4 Blackstone 199. Among the examples that Blackstone cites of murder is "coolly discharging a gun among a multitude of people", causing the death of someone of the multitude.
In Pennsylvania, the common law crime of murder is divided into two degrees, and murder of the second degree includes every element which enters into first degree murder except the intention to kill: Commonwealth v. Divomte,
In Com. v. Hillman,
In Com. v. Knox,
Appellant has assigned for error certain excerpts from the charge of the court. The charge in its entirety affords no grounds for the reversal of the judgment and sentence. Certain excerpts if they stood alone might have misled the jury to the defendant's prejudice. For example, the trial judge said: "All felonious homicide or illegal or unlawful homicide is presumed to be malicious, that is, murder of some degree, until the contrary appears in the evidence." The second sentence after this one reads as follows: "Accordingly, when a felonious or unlawful homicide is proved, malice is presumed to have existed . . . as a presumption of fact". A homicide may be unlawfulwithout being presumably malicious. The homicide known as involuntary manslaughter occurs when death is caused by an unlawful act or by a lawful act done in an unlawful manner. While there do appear statements in some of the reports that "all unlawful homicide is presumed to be malicious and, therefore, murder", careful trial judges always qualify that statement, as Chief Justice AGNEW did in Com. v. Drum,
However, the charge was in several respects prejudicial to the Commonwealth. For example, the trial judge said: "It is the duty of the Commonwealth to prove that the killing was unlawful and intentional, and if the evidence taken as a whole raises reasonable doubt in the minds of the jury as to whether the killing was accidental or intentional, you must acquit the accused, for the reason that the Commonwealth has failed to sustain its case." This instruction was tantamount to saying that the Commonwealth in order to obtain the conviction of the defendant of any crime included in the indictment had to prove him guilty of murder in the first degree, for if the killingwas intentional, it would have been murder in the first degree. The alternative presented to the jury by the instructions was limited to an intentional killing or to an accidental killing. The jury found that the killing was neither intentional nor accidental but that it was a malicious killing though without a specific intent in the killer to take life, and that, therefore, it was murder in the second degree. *186
The trial judge also erred in charging that "A person on trial for murder cannot be convicted of any offense if the testimony shows that the death was accidental". Death may be accidental though it resulted from a malicious act intentionally committed. In such a case the means were not accidental; the result was.3 In the instant case if the defendant had by some negligent, unintentional act, caused Long to fall off the stool at which he was sitting in the store and if, as a result of that fall, Long had sustained a fatal injury, both the initial act and the death might be correctly characterized as accidental. But when the defendant knowing that a revolver had at least one loaded cartridge in it, pressed the muzzle of that revolver to the side of Long and pulled the trigger three times, his act cannot be characterized as accidental, even if his statement that he had no intentionto kill Long is accepted (as the jury accepted it). The way the trial judge used the word "accidental" throughout the charge must have been confusing to the jury and might easily have misled it into acquitting the accused on the theory that since the death of Long was accidental, "the defendant cannot be convicted of any offense", (as the trial judge said). The latter should have made it clear to the jury that even though Long's death might have been unintended and, therefore, accidental, the evidence showed that the act which caused the victim's death was not accidental. This was the view the jury took of the case despite the court's instructions.
In another portion of the charge, the trial judge said to the jury: "If you believe the testimony of the defendant, that the shot was accidental and without intention *187 on his part, and that the shot accidentally and without intention on his part struck the body of William H. Long, from the effects of which he afterwards died, then you should acquit the defendant". There was not in this record any evidence which would warrant a finding that "the shot was accidental". Later the judge instructed the jury that "If the killing was accidental, although done with a deadly weapon, it could not be said to be intentional or wilful; and, if neither intentional nor wilful, the crime of murder is not made out". What we have already said on this phase of the case sufficiently reveals the error in these instructions. Of such and similar errors, the appellant cannot complain; they were prejudicial only to the Commonwealth.
This court said in Sears v. Birbeck,
The killing of William H. Long by this defendant resulted from an act intentionally done by the latter, in reckless and wanton disregard of the consequences which were at least sixty per cent certain from his thrice attempted discharge of a gun known to contain one bullet and aimed at a vital part of Long's body. This killing was, therefore, murder, for malice in the sense of a wicked disposition is evidenced by the intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on others. The fact that there was no motive for this homicide does not exculpate the accused. In a trial for murder proof of motive is always relevant but never necessary.
All the assignments of error are over-ruled and the judgment is affirmed. The record is remitted to the court below so that the sentence imposed may be carried out.
The difference between intentional means and "accidental"results is discussed in Arnstein v. Metropolitan L. Ins. Co.,
In the famous case of Com. v. Webster, 5 Cushing 295, 311, Chief Justice SHAW of Massachusetts used the following simple illustration to instruct the jury as to the nature and value of circumstantial evidence: "When footprints are discovered after a recent snow, it is certain that some animated being has passed over the snow since it fell; and, from the form and number of footprints, it can be determined with equal certainty, whether they are a man, a bird, or a quadruped."