Commonwealth v. Conklin

160 A.2d 566, 399 Pa. 512, 1960 Pa. LEXIS 483

Opinions

Opinion by

Mr. Justice Cohen,

This case is ruled by Commonwealth v. Edwards, 394 Pa. 335, 147 A. 2d 313 (1959). The defendant, Eleanora Avis Conklin, charged with the felonious homicide of her three year old son, was tried on December 8, 1958, before the Court of Oyer and Terminer of Cambria County. A plea of not guilty was entered, but on December 12, 1958, the jury returned a verdict of guilty of murder in the first degree and fixed the sentence at life imprisonment. Defendant’s motion for a new trial and in arrest of judgment was overruled by the Court en banc on November 3, 1959, sentence was entered by the Court a week later and this appeal followed.

The only question raised by the defendant on this appeal is the sufficiency of the charge to the jury. Since the learned trial judge gave his charge on December 12, 1958, he was unable to refer to the then unavailable opinion in the Edwards case (handed down on January 5, 1959), in which our view in these matters was fully expressed by Justice Musmanno. There should no longer be any doubt that in any criminal jury trial conducted in the Commonwealth in which a plea of not guilty is entered by the defendant, the court must adequately instruct the jury on the possible verdict of “not guilty.”

The- necessity for so instructing the jury was not diminished by the fact that the defendant voluntarily admitted to several witnesses, gave sworn signed statements and later confirmed from the witness stand the details surrounding the killing. Nor was it diminished by the fact that the defendant introduced evidence only to substantiate her two affirmative defenses, insanity at the time of the commission of the crime, and that the defendant was rendered incapable of forming an intent to kill by the voluntary use of drugs. When the accused plead not guilty, she thereby put in issue every single element in the prosecution’s case, upon which the prosecution must meet its affirmative burden of proof beyond a reasonable doubt. The district attorney has argued that the defendant never, either before or during the trial, denied the killing. This is in law irrelevant, for it is not the accused who must prove her innocence, but the prosecution who must prove her guilt. If the defendant introduced no evidence whatever, she •would still be entitled to a charge on the possibility of a not guilty verdict based on the jury’s disbelief of the prosecution’s ease. We have often stated that a confession of the commission of a crime is not sufficient, in and of itself, to convict. Even though it may obviate the necessity of proving the accused’s moral and material participation in whatever happened, it does not obviate the necessity of establishing the material and legal existence of a crime. Thus, neither the admission of certain facts by the defendant nor her failure to deny the killing serves to relieve the prosecution of its burden of proof. We need not be reminded of the countless situations where persons confess to crimes of which they are innocent, either out of a desire to cover up for the guilty person or because of a psychological urge to do so. It is therefore necessary to adequately remind the jury in the charge that if the prosecution’s evidence fails to convince them beyond a reasonable doubt on any essential element of the prosecution’s case, they must return a verdict of not guilty. This holds true whether “the evidence of guilt piles as high as Mt. Everest on Matterhorn, even if the District Attorney conscientiously believes the defendant to be as guilty as Cain, and no matter with what certainty the Judge views the culpability of the accused at the bar . . . .” Commonwealth v. Edwards, supra, at 338.

In the instant case, the trial judge made reference to the presumption of innocence in but one sentence on the third page of a charge that consumed over forty pages in a lengthy record. And although the judge twice stated that the prosecution must produce evidence of the defendant’s guilt beyond a reasonable doubt, the first time he did so, he only instructed that proof beyond a reasonable doubt was required for a first degree conviction: “All murder is presumed by law to be murder in the second degree and the burden falls upon the Commonwealth of establishing beyond a reasonable doubt the existence of the elements of murder of the first degree.” The second time he mentioned the proposition, the judge nullified a proper charge by stating incorrectly: “If you are not satisfied beyond a reasonable doubt as to the existence of a finding of guilt, then you determine whether the defendant, having the affirmative burden, has satisfied you by a fair preponderance of tbe evidence, that she should be excused from the consequences of a higher degree by reason of the drugs, or that she was insane, in which case she would not be answerable at all.” Such a charge left the clear implication for the jury that if they had a reasonable doubt, they still should not acquit unless the defendant met the burden of proof required for one of her affirmative defenses.

Toward the end of the charge, the judge instructed, “Now I’m going to tell you about the possible verdicts as I see can be brought in under this evidence, and you have to decide.” He then discussed murder in the first degree, murder in the second degree, and not guilty on the ground of insanity. Immediately following this discussion, the judge said: “Isn’t that all the possible verdicts? Manslaughter, we are ruling, is not in this case.” At this point, the defense interrupted to ask the Court: “Just a moment. There’s one more possible verdict, your Honor. What about not guilty?” Following a side bar conference and a further instruction by the judge concerning not guilty by reason of insanity, the defense counsel again asked: “One more thing, your Honor. May this jury acquit this defendant and throw out all of the evidence they heard?” To this the court replied: “You are putting me in the hole. I would say no, in my opinion, but it’s up to the jury what they want to do. We can’t control that.” This was the closest that the court came to an instruction on the possibility of a verdict of not guilty. The charge continued for only one more page of the record before the jury retired to deliberate its verdict. Coming at this crucial point in the charge, the court’s statement that it did not think a not guilty verdict was possible could not help but wipe out any prior instructions on burden of proof or presumption of innocence. In so doing, it vitiated an otherwise eminently fair proceeding and deprived the defendant of a trial in accordance with due process of law. Pa. Const. Art. I, §9.

Judgment vacated and record remanded for new trial.