142 A. 213 | Pa. | 1928
Lead Opinion
Argued April 16, 1928. Defendant, a young man, twenty years of age at the time of the occurrence we are to deal with, appeals from his conviction and sentence for murder of the second *220 degree, contending that the evidence produced against him did not establish this crime.
With two companions he was driving his father's automobile about half past ten o'clock at night along Northampton Street in Wilkes-Barre Township in the County of Luzerne. His progress was down grade and was at the rate of twenty or twenty-five miles an hour. The highway was well lighted. Frank Ravitt and his wife were walking in the cartway of the street ahead of and in the same direction as the automobile, their presence within the street limits and not on the sidewalk being due to the pavement's bad condition. They were at the right-hand side of the center of the cartway, the wife in or near the street car track, the husband on her right. He was pushing a baby coach in which was their infant child. Defendant so drove his automobile that it struck the group in the cartway, killing the husband and the baby and seriously injuring the wife. The impact was with such force as to knock the bodies of the man and woman a distance of from twenty-five to fifty feet and the child out of the coach and over onto the pavement. There was a dispute in the testimony as to whether the lights on the automobile were lit and as to whether defendant sounded his horn as he approached the stricken people; whether he was intoxicated was likewise a controverted fact.
One of the Commonwealth's most material witnesses, Lawrence Brosinski, the only person except defendant and the two others who were in the car with him who actually saw the tragedy, testified that if defendant "had swung his machine toward the side instead of the middle of the road he would never have struck these people." Defendant's story in amplification of this was that he blew his horn and noticed the two persons walking in the center of the road, that he had ample room to pass them to the right, that when he blew his horn "they seemed to be going to the left, and all of a sudden they veered to the right, and as they did I applied my brakes, *221 but it was too late. I had already struck them — he [the husband] seemed to dart to the right quicker than I could get the machine stopped." In this recital he was corroborated by the two young men who were in the car with him. The automobile ran some distance, perhaps 200 feet beyond the point of the collision. Defendant and his companions ascribed this to the circumstance that in his excitement he took his foot off the brake. It appeared in the prosecution's case by the testimony of more than one witness that the brakes were applied, as they heard their screeching before the crash. Immediately after the automobile stopped, defendant ran back, picked up the woman and aided in placing her and the husband in automobiles, one of them in his own, to convey them to the hospital. Upon this evidence the jury found defendant guilty of murder of the second degree and the question to be decided is whether that finding can be sustained.
Murder, as defined by the common law, consists of the unlawful killing of a human being with malice aforethought, express or implied: Com. v. Harman,
Wharton's Criminal Law, 11th ed., vol. 1, p. 702. It is apparent, therefore, that malice is a necessary element of the crime of murder of the second degree, and it was with this in view that we recently said "it is rarely that the facts in a motor vehicle accident will sustain a charge of murder. The element of malice is usually missing. There must be a consciousness of peril or probable peril to human life imputed to the operator of a car before he can be held for murder": Com. v. Mayberry,
If defendant was guilty of any crime, it was that of involuntary manslaughter, which consists in "the killing *223 of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty": Com. v. Mayberry and authorities there cited.
Defendant may still be tried on the indictment charging involuntary manslaughter, notwithstanding that the district attorney entered a nolle prosequi on the indictment. A nolle prosequi is a voluntary withdrawal by the prosecuting attorney of present proceedings on a particular bill. At common law it might at any time be retracted, and was not a bar to a subsequent prosecution on another indictment, but it might be so far cancelled as to permit a revival of the proceedings on the original bill: Words Phrases, 1st Series, vol. 5, p. 4814. Whatever the rule may be elsewhere, such action in this jurisdiction is not a bar to a subsequent indictment for the same offense, or may be so far cancelled as to permit a revival of proceedings on the original bill: Hester v. Com.,
The first assignment of error is sustained and the judgment of sentence is reversed without prejudice to the Commonwealth's right to proceed against defendant for the crime of involuntary manslaughter.
Dissenting Opinion
The majority opinion states that defendant, while driving his father's automobile, struck three persons who were travelling in front of him and going in the same direction he was, killing two of them and greatly injuring the third; that the car then ran some 200 feet further, after which he returned and helped convey two of the three to the hospital, and from this concludes that "defendant's actions after the collision negative the idea *224 of wickedness of disposition or hardness of heart." With all due respect, the jury and trial judge who saw the witnesses when they testified, and the colleagues of the latter who obtained from him a clear picture of their conduct on the witness stand, were far better able to draw the true inferences, than the judges of this court who must rely upon what appears in cold type only. At least as possible an inference from the facts above stated is that the defendant, while running the 200 feet beyond the place of the accident, concluded he would be better off if he came back than if he fled further, and hence the fact of his return did not negative the conclusion, which the jury drew from all the evidence, that defendant's "wanton and reckless conduct. . . . . . [at thetime of the accident shows his] wicked disregard of the consequences of his acts," and this, if found to be true, as it was, the majority agree would be sufficient to sustain the verdict and sentence. For this reason I dissent.
The chief justice concurred in this dissent.
