| Pa. | May 24, 1855
The opinion of the Court was delivered, May 24, 1855, by
The plaintiff in error has been sentenced to suffer death; and the question is, whether the record justifies the sentence. The 2d section of the Act of 22d April, 1794, declares that “ all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetuate auy arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all
The cases of the Commonwealth v. Earle, 1 Whar. 525, and Commonwealth v. Miller, Lewis Crim. Law 398, 401, show that where the indictment charges the murder to have been perpetrated “ by means of poison,” or “ by lying in wait,” a verdict of “ guilty in manner and form, as the prisoner stands indicted,” does “ ascertain” the murder to be of the first degree. The reason of this is, that the indictment is thus referred to as forming part of the verdict, and the latter thus “ ascertains” the facts, which, in judgment of law, amount to murder of the first degree. On the same principle it may be conceded, for the purposes of the present case, that, if the indictment had charged the murder to have been committed wilfully, deliberately, and premeditatedly, or in perpetrating, or attempting to perpetrate either of the other enumerated felonies, a similar verdict would also sufficiently “ ascertain” the murder to be of the first degree. But the indictment under consideration is totally destitute of either of these averments. It merely charges that the murder was committed “ feloniously, wil-fully, and of malice aforethought.” This is the usual and proper description of the crime at common law, and the language applies as well to the second as to the first degree. It does not necessarily import an intention to kill. It is applied by construction of ■ law to murders committed without such intention. If death had ensued in the perpetration of any felony not enumerated in the section; or in an attempt to procure abortion; or been caused by purposely letting loose a beast known to be accustomed to destroy human life; or when the mind of the prisoner, from intoxication, or other cause, was deprived of the power to form a design with deliberation and premeditation, the offence would be stripped, of the malignant feature required by the statute to place it on the list of capital crimes. But in all these cases, although the prisoner had no intention to kill, he is deemed guilty of killing “ felo-niously, wilfully, and of malice aforethought.” On the principle that every one is answerable for the necessary consequences of his unlawful acts, he is adjudged guilty, at common law, of construe-, tive “malice aforethought.” But constructive malice is not the “ deliberate and premeditated killing” required by the statute to constitute murder of the first degree. A premeditated intention to destroy life is an indispensable ingredient in that offence. An unlawful killing may be presumed murder; but it will not be presumed murder of the first degree. The burden of proving it so lies on the Commonwealth. The evidence produced by the Commonwealth, in the case of Bridget Harman, 4 Barr 269, may have justified the instructions given to the jury in that case. But they
We have said that murder by drowning is not necessarily murder ,of the first degree. It is not placed by the statute in the category with murder “by means of poison,” or “by lying in .wait,” and the Courts have no right to place it there. It is true that the indictment charges the prisoner with throwing the deceased into a dam, and holding her under the Water until she was suffocated; but this may have been done in the pursuit of some unlawful object, without an intention to take her life. It may have been done in mischievous and cruel sport; or it may have been done for the purpose of procuring abortion. Eor aught we know, the evidence given on the trial might have fully justified the jury in deciding that the crime was murder of the first degree.' But, as they have not done so, the Court cannot look into the evidence for the purpose of ascertaining the character of the offence. This would be an infringement of the right of trial by jury. They have found the prisoner “ guilty in manner and form as he stands indicted,” without otherwise “ ascertaining” the degree. They have thus made the indictment a part of their verdict, and we are to consider the case as if they had found a special verdict, stating the facts precisely as they are set forth in the indictment. We have seen that the language of the indictment applies as appropriately to the second as to the first degree. If there was nothing else to restrain us from interpreting it to mean murder of the first degree, the rule of mitiori sensu would require us to adopt the milder construction. But the clear and positive provisions of the Act of 1794 fix the interpretation beyond a doubt. We have seen that the indictment is destitute of the aver-, ments required by the statute to constitute murder of the first degree. The case must, therefore, of necessity, fall into the class provided for by the clause in the Act which declares that “ all other kinds of murder shall be deemed murder of the, second degree.” In this opinion we are unanimous. It follows that the judgment must be reversed, and the record remitted for further proceedings according to law.
It is considered and ordered that the judgment of the Court of 'Oyer and Terminer, of the county of Lancaster (sentencing the said Samuel Johnson to suffer death), be reversed and annulled; and it is further considered and ordered that the record be remitted to the said Court, with directions to pass such sentence as the law authorizes on a verdict of guilty of murder of the second degree.