267 Pa. 541 | Pa. | 1920
Opinion by
The appellant was found guilty of murder of the first degree, and judgment of death followed, The sole and
We are again called upon to repeat, strange as it may seem, that on the trial of an indictment charging felonious homicide, the law’s presumption is that the offense of the accused is no higher than murder of the second degree, and the burden is always upon the Commonwealth to rebut that presumption by proof, establishing to the satisfaction of the jury, that the crime is of the first degree. This burden never shifts, but continues to rest upon the Commonwealth throughout the entire trial, and the accused is not called upon to rebut the presumption of a degree of guilt which does not exist: Com. v. Drum, 58 Pa. 9; Murray v. Com., 79 Pa. 311; Com. v. Mika, 171 Pa. 273. There is not a line in the entire charge indicating to the jury that, though the prisoner’s guilt had been established, the presumption of the law was that it did not rise higher than murder of the second degree. On the contrary, the only conclusion the jury could have reached, under the instructions given them, was that the law presumed it to be murder of the first degree. This most clearly appears from those portions of the Charge complained of by the first and third assignments of error. After defining the different degrees of homicide and announcing in a general way to the jury that “in an indictment such as that before us, and which you will have in charge, a verdict for murder of the first degree, murder of the second degree, or voluntary manslaughter could be found and could be sustained,” the trial judge almost instantly added, “We
In Com. v. Greene, 227 Pa. 86, the only one of the numerous assignments of error sustained complained of the following from the charge of the court: “The law holds that if a man uses a deadly weapon upon the vital part of another person, it is a presumption that he intended the consequences that would follow from, as, for illustration, from his pulling the trigger and sending a bullet crashing into the brain of some human being; that is, that he intended to kill, and if he so does, it is on him to answer to the jury aught that he may have in extenuation or qualification to relieve himself from that presumption of murder of the first degree.” What was said, in holding that this was error, is here controlling, and we now repeat it: “The only inference to be drawn by the jury from this instruction was that if they found the prisoner had shot the deceased, the burden was upon him to relieve himself from the law’s
Nothing is to be found in the charge relieving it from the error disclosed .by the first and third assignments, and they are, therefore, sustained.
Judgment reversed and a venire facias de novo awarded.
See Com. v. Berkenbush, above, p. 455.