Commonwealth v. Moore, Appellant.
Supreme Court of Pennsylvania
December 31, 1959
398 Pa. 198 | 157 A.2d 65
John J. Krafsig, Jr., for appellant.
John A. Roe, Assistant District Attorney, with him H. F. Dowling, District Attorney, for appellee.
OPINION BY MR. JUSTICE BENJAMIN R. JONES, December 31, 1959:
The defendant, Leola Moore, was found guilty of voluntary manslaughter by a jury in the Court of
Isaac David Moore and Leola Moore, husband and wife, lived at 1608 Wallace Street, Harrisburg, having come to Harrisburg from South Carolina several years prior to the incident which gave rise to this criminal prosecution. On the mid-afternoon of July 5, 1958, in his home, Isaac Moore received at the hands of Leola Moore, the defendant, a wound which resulted in his death.1
At approximately 3:15 p.m. on that date the deceased entered his home and, finding the defendant in the dining room, inquired why she had not prepared anything to eat; the defendant explained that she had cleaned the kitchen floor and was waiting for it to dry but the deceased, instead of accepting this explanation, cursed defendant. The defendant went into the kitchen followed by the deceased. Defendant picked up a butcher knife, 11 1/8 inches long, and returned to the dining room. The deceased from the kitchen threw a portable radio at defendant which, according to defendant, struck her and, according to the Commonwealth, landed near her feet. Defendant then started toward the living room and the deceased started following her. Defendant turned, raised her arm and stabbed the deceased inflicting a wound which caused his death within an hour. Although unarmed as he followed defendant, the deceased was saying something and in an angry mood. There was no evidence of any attempt
Dr. Lippard described the character of the wound inflicted: “Yes, the wound, as I say, entered the soft parts of shoulder. It went behind the main bone of the arm. It vented, of course, across the arm pit and then entered the chest between the fourth and fifth ribs. It then went across the chest and cut open the sac which covers the heart. It then terminated at one of the major arteries which leave the heart, the pulmonary artery.” Although the knife blade was 11 1/8 inches long the wound to the pulmonary artery was somewhat longer from which the inference may be drawn that the knife was wielded with force.
Defendant contends: (1) the trial court erred in overruling her demurrer at the close of the Commonwealth‘s case and thus her motion in arrest of judgment should be granted; (2) the trial court was in error in allowing the jurors to deliberate for eleven hours—7:08 p.m. to 6:10 a.m.—without making any provision for them to rest and sleep; (3) the trial court erred in permitting the Commonwealth, in rebuttal, to present the testimony of a witness concerning a threat alleged to have been made by defendant four months prior to the homicide; (4) the verdict of the jury was against the weight of the evidence.
Defendant‘s first contention, i.e., that her motion in arrest of judgment should be granted, is premised upon the alleged failure of the Commonwealth to prove that the killing of deceased was intentional. In considering this contention the defendant would have us review the refusal of the court below to sustain her demurrer which we cannot do: Commonwealth v. Spanos, 167 Pa. Superior Ct. 629, 631, 76 A. 2d 243 and
Time and time again this Court has held that the fatal use of a deadly weapon against a vital part of the body of another, when established as a fact, warrants the inference that the act was done with the specific intent to take life.2 Our present Chief Justice, speak-
Defendant next argues that the court erred in keeping the jury together for an unusually long time without opportunity to rest and thus prejudiced the defendant. During the trial the jury had had rooms at the Penn-Harris Hotel. On the last day of the trial the jurors checked out of the hotel and brought their luggage with them to the courthouse. The jury retired for deliberation on the verdict at 7:08 p.m. after which time the jurors were fed. At 11:15 p.m. the jury requested and were given additional instructions on the various degrees of homicide and, in the words of the trial judge, at that time “gave no indications of fatigue
Defendant argues that it was reversible error on the part of the trial court to require such extended deliberation without rest for the jurors of whom ten were women. It is very significant that the jurors made no complaint nor any request that their deliberations be suspended and that they be given an opportunity to rest.
Many years ago in People v. Olcott, 2 Johns. Cas. 301, Mr. Justice KENT said: “The doctrine of compelling a jury to unanimity by the pains of hunger and fatigue, so that the verdict in fact be founded not on temperate discussion and clear conviction, but on strength of
Defendant‘s third contention is that the trial court erred in permitting the reception into evidence of the rebuttal testimony of a Commonwealth witness, Constable Grimwood. The defendant had taken the stand and had testified, inter alia, that she loved her husband, had never threatened to kill him and had never told anyone that she would kill him. Grimwood testified that, in March 1958, he was attempting to apprehend the deceased and, while chasing deceased through his home, defendant said “If you don‘t soon get him, you will be coming after me, because I am going to kill him.” The court admitted this testimony for two purposes; first, as it might affect the credibility of the defendant and second, to show possible intent. For both purposes this testimony was clearly admissible. In Commonwealth v. Minnich, 250 Pa. 363, 371, 95 A. 565, we stated: “With respect to this latter it need only be said that threats and all declarations of personal hostility are admissible in evidence, as showing malice and tending to show criminal intent charged.” To the same effect see: Commonwealth v. Patskin, 372 Pa. 402, 93 A. 2d 704; Commonwealth v. Peyton, 360 Pa. 441, 62 A. 2d 37; Commonwealth v. Minoff, 363 Pa. 287, 69 A. 2d 145.
Judgment of sentence affirmed.
DISSENTING OPINION BY MR. JUSTICE MUSMANNO:
On the morning of September 11, 1958, the jurors in this case, who had been hearing evidence for three days, were instructed by the Court attaches to check out of the hotel in which they had been lodged, pick up their luggage and report to the courtroom for the final day of the trial. At 7:08 that evening, after receiving instructions from the Judge on the subjects of murder and manslaughter, the jurors took up the case for deliberation, discussion and verdict. At 11:15 p.m., they requested further instructions which were given to them in the courtroom and they once more retired to the jury room.
At 3 a.m., no word having been received on the possibility of a verdict that night, defendant‘s counsel requested the Trial Judge to assign sleeping quarters to the jury. This request was refused. At 5 a.m., the Judge called the jury into the courtroom and the following ensued: “THE COURT: Are there any questions that you think the Court might be able to answer; any additional questions that you might have that would help? This is, of course, an important case, as you well know, and you have deliberated on it very con-
At 6:08 a.m., the jury returned a verdict of voluntary manslaughter. The defendant seeks a new trial, asserting that the verdict, in effect, was a coerced one since the jurors were compelled by the Judge to reach a unanimous verdict at a time when they were exhausted from lack of sleep and thus were not able physically to conscientiously discharge their duties.
I would grant a new trial because I believe that the facts justify the conclusion that the verdict was not the unanimous will of twelve persons free from the demands of disabling Nature clamoring for rest. The Majority Opinion quotes the Trial Judge as saying that when, at 11:15 p.m., he delivered additional instructions, the jury “gave no indications of fatigue or illness.” But this was still at a reasonable hour. There was no reason for the jury to have been helplessly fatigued at 11:15 p.m. However, this was still a long distance from 5 a.m. In six hours the pendulum of the clock swings thousands of times and, with each stroke, after midnight, the eyelids of the average person become heavier, the muscles tire, the brain loses alertness and, as a consequence, attention flags, concentration weakens, resolution droops, determination falters, and eventually a sleepless juror may well lose
A juror needs sleep as much as Macbeth.
In answering the defendant‘s argument that the jury was coerced into a verdict by physical exhaustion, the Majority Opinion says: “It is very significant that the jurors made no complaint nor any request that their deliberations be suspended and that they be given an opportunity to rest.” This observation is artless and, with due respect, I must say that it is almost naive. Who were the jurors to stand up in the jury box and protest against the omnipotence of the Court? No one informed them that they had the right to ask for a suspension of their deliberations until they had been refreshed with rest and slumber. They had been told that very morning that there would be no sleeping accommodations for them any more; they were given their suitcases. In every way that human intelligence can understand, they could only conclude that they had to reach a verdict before they could get to a bed again, and this time it had to be the bed in their own homes.
Who gave the orders that the jurors release their rooms at the hotel while the trial was still in progress? Who assumed the clairvoyant powers to tell them that the trial would be over and the verdict rendered that day?
It is amazing to me how some judges will allow a trial to move on tortoise feet throughout the unfoldment of the evidence and then, when the most important phase of the trial, and, in fact, the only reason for which a trial is held, becomes imminent, everyone is exhorted to hurry. The lawyers must limit their arguments, the jury must deliberate quickly, the verdict must be reached speedily, and justice must be satisfied on the run. Just as the ship of justice is
Instead of placing the blame where it belongs, on the Trial Judge who allows, permits and encourages this headlong procedural helter-skelter, the Majority attempts to shift the fault to the jury. The Majority Opinion says, as already stated, that the jury should have complained. But to say that jurors may complain is like saying that a recruit in the army or navy may complain when his superior officer orders him on a detail of duty. Appellate courts often overlook that jurors are novices in the ways of the law, that they are strangers in an unexplored land, that they are children in the presence of awesome authority. Their every physical movement is guided and controlled by the Judge and the Court attaches. When the Judge said to the jurors that: “We are going to send you back again for another effort to see if you can‘t come to a unanimous verdict, and we urge you to make every effort to do that“, his words were like a royal invitation, they constituted a command.
During his entire speech to the jury at 5 a.m., the Judge made not the slightest suggestion that if they desired rest and needed sleep, he would see that they got it. What the Judge said was that he wanted a verdict, a unanimous verdict. He said this in courteous language, of course, but in words which could have left no doubt in the minds of the jury that he regarded it as their duty to return a verdict, and return it quickly.
With the Judge‘s importuning words ringing in their ears, the jurors left the courtroom at 5 a.m., and returned with a verdict at 6:05 a.m. What happened in that hour? It is obvious what happened. Flesh overcame will, exhaustion broke down resolution, the
There was a time when I wondered why it was that, even with so-called third degree methods, prisoners would confess to deeds which they could not possibly have committed. In many cases it developed that they signed confessions because they were not allowed to sleep. They were not subjected to physical violence, but by various devices and means they were denied sleep. The agony of the denial of sleep is a torture which surpasses almost any type of physical manhandling. It has been proved scientifically that the time comes when the victim who is denied sleep will sign any paper, confess to any murder or a hundred of them, if only he may close his eyes in dead relief so that the thousands of battering rams at every pore of consciousness may cease their maddening blows.
The Majority is not unsympathetic to victims of sleep pirates and quotes with approval what the celebrated Justice KENT said, namely: “The doctrine of compelling a jury to unanimity by the pains of hunger and fatigue, so that the verdict in fact be founded not on temperate discussion and clear conviction, but on strength of body, is a monstrous doctrine that does not stand with conscience, but is altogether repugnant to a sense of humanity and justice.” (People v. Olcott, 2 Johns. Cas. 301). The Majority only says that there is no proof in this case that any juror was coerced into the verdict because of lack of repose. But the facts of Nature are as much a part of a Court record as the stenographic transcript. Nature writes with an accuracy and an inerasability that would shame the most faithful stylograph or stenotype. And when it is known that a jury is deadlocked at 5 a.m., after deliberating all night, and have not only had no sleep but no accommodations in which to rest comfortably,
The Majority cites the case of Commonwealth v. Tenbroeck, 265 Pa. 251, which supports my position rather than the Majority‘s. In that case the Judge said to the Jury: “‘If some one of you should become physically unable to remain, the situation would be different, but as long as you are physically able to remain, it is your duty to undertake to agree.‘” If, indeed, in the case at bar, the Judge had intimated to the jury in any way that he would allow them to sleep if they needed sleep, and he would see that they got the accommodations to sleep, the situation would have been considerably different. But the Judge failed to tell the jury that he would give them the opportunity to sleep, if they wanted to sleep, and, failing to do this, he ignored Justice who, herself, lay down on the couch of weariness and drifted off into the land of Nod where thought is a vagrant zephyr, deliberation a floating vapor, and decision uncontrolled, irresponsible, and often bizarre.
DISSENTING OPINION BY MR. JUSTICE MCBRIDE:
I cannot agree that the opinion of the Court, or any of the observations contained therein, were either artless or almost naive. Nevertheless, in all other respects I join the reasoning and the conclusion in the dissenting opinion of Justice MUSMANNO. I need add only a few words on my own.
I have examined the record in Commonwealth v. Tenbroeck, 265 Pa. 251, 108 Atl. 635, cited in the majority opinion, and was shocked to find that at the time it was written it would support the present majority opinion. Indeed, the coercion there was infinitely worse than the coercion here. It must be pointed out, however, that (1) this Court was con-
As recently as the
I believe that the decision whether the court below abused its discretion is akin to the principles that govern in applying the doctrine of harmless error. It is just as necessary that we do not find an abuse of discretion where the decision of the court below was reasonable, even though we disagree with it, as that we should not reverse a lower court for error where we are satisfied that it was harmless. The application of
In Commonwealth v. Blose, 160 Pa. Superior Ct. 165, 50 A. 2d 742, the Superior Court adopted the view as to harmless error stated by the Supreme Court of the United States in Kotteakos v. United States, 328 U. S. 750, 66 S. Ct. 1239, 1248 (1946), where it was said: “If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.”
Of course, one can never tell with certainty whether compelling the jury to continue its deliberations, as the court below did, was prejudicial to the defendant or favorable to her. In this case, however, although I am convinced that the evidence could possibly have warranted a finding greater than voluntary manslaughter, it does not seem to me that such a verdict would have been either likely or just. The real issue was not between murder and manslaughter but between manslaughter and Not Guilty. The situation is much different than in Tenbroeck, supra. In this case, after a review of the record, I am left with the unrelievable impression that the jury was coerced by fatigue and that this coercion did prejudice defendant.