Commonwealth v. Eckerd

34 A. 305, 174 Pa. 137, 1896 Pa. LEXIS 860

Opinions

Opinion by

Mr. Justice Mitchell,

The first and second assignments of error are founded on the judge’s use of the word “ felonious ” in describing the killing. But there was no error in this. The killing was not denied, and there were no circumstances testified to by any witness which in the most favorable aspect could reduce it below the .grade of felony.

The third, fourth and seventh assignments relate to the omission to charge on the law of insanity, and to what the judge said on the subject of temporary aberration as bearing on the prisoner’s power of conscious and deliberate action. There was ■nothing in the case which called for discussion of the law of insanity. The prisoner himself made no defense on that ground. All he said about his “ spells ” was that at times things “ would get black ” before him, so that he “ could not see where he was ■going, and would have to get up against the fence or hold fast to something ” and afterwards would not remember. But even he made not the least pretense to any insane impulse at such times. The learned judge stated the bearing of these temporary conditions of the prisoner’s mind on his power of forming a deliberate purpose and of knowing what he was doing, gave the jury a direction “ to examine the testimony on this subject with the greatest care,” and then called their attention to the want of corroboration of the prisoner’s story on this point, and to the testimony as to his conduct and language at the time and immediately after the shooting. All this was clearly within the judge’s privilege, if not his imperative duty.

The fifth assignment of error relating to the charge on the subject of good .character, and the argument in support of itr rest on the assumption that the jury were directed to separate that branch of the testimony from the rest, and if they were satisfied from the other testimony that the prisoner was guilty, then good character would not avail. The charge however is not open to this construction. The assignment connects two-sentences as if the second immediately followed the first, whereas-in the charge as delivered they are separated by fourteen printed lines of very material bearing on this subject. This is most reprehensible practice. The judge did not use the word “ other,” or draw any distinction between the testimony as to good character and as to the rest of the matters concerned. On the contrary his expression was, “ where the jury is satisfied from the evidence in the case,” meaning clearly all the evidence, and then, after telling the jury explicitly that good character was of great importance and not a mere makeweight, he concluded the subject by saying “ where the jury is satisfied beyond a reasonable doubt, under all the evidence that the defendant is guilty, evidence of previous good character is not to overcome the conclusion which follows from that view of the case'.” This was a correct statement of the law.

There was no evidence in the case that called for any charge on the subjects of intoxication or self-defense, and the eighth and ninth assignments may be dismissed without further discussion.

The sixth, tenth, eleventh and twelfth assignments may be taken together as they all relate to the degree of the crime. The effort of the prisoner’s counsel was to reduce the killing to manslaughter, or at least murder of the second degree, and to this end they put forward in the court below and have argued here, in such varied shapes as ingenuity could suggest, the proposition that if the killing was done in sudden passion it could not be murder of the first degree. But no ingenuity can cover up the essential defect in this proposition. The passion even though sudden must be upon sufficient provocation, and of this vital element there is no evidence in the case. The only testimony which is claimed as even tending to that end is Sayre’s. This witness does say that Bittenbender, the deceased, “ either pushed or struck at ” the prisoner, but in immediate connection with that, says, “ it appeared Mr. Bittenbender wanted to get rid of him, did not care to have him standing there.” Again in response to the direction to show how Bittenbender struck or attempted to kick, he said, “ well, he pushed him away like that, wanted to get rid of him. Q. Did not kick at him? A. Made a motion to kick. Q. Show us what he did. A. I could not see well enough to swear to that. Q. Show us to the. best of your knowledge. A. Well, he made a motion to get rid of him; he pushed him away, like that, a motion to kick him if he did not go away. Q. Did he kick him? A. I didn’t see him kick.” The deceased was in his buck-board and did not at any time attempt to get out, or to attack the prisoner. This is the whole evidence on this point, and it does not suggest a scintilla of provocation to reduce the shooting below its natural grade, or to rebut the legal presumption that one who fires at a vital part intends to kill.

The tenth assignment, which is the only one in the case that has given us any occasion for doubt, is based on the first point of the defense, that “ the killing of the deceased by the prisoner at the bar having been proved, the burden is on the commonwealth to prove beyond a reasonable doubt the deliberate and premeditated intent to take life.” So much of the point was affirmed but the second part, that “ if the jury believe that there was not a fully formed purpose to kill, but that the act was the immediate offspring of rashness and impetuous temper, the defendant cannot be convicted of murder in the first degree,” was refused. It could not have been affirmed without material explanation to qualify its apparent intention. Of course the fully formed purpose to kill is a necessary element of murder of the first degree, and any instruction that misled the jury, or left them in doubt on this point would have been clear error. But there is nothing of that kind here. In the first place the intent to take life, fully formed, is presumed from the use of the weapon, and certainly where as in this case it was fired three times. “ The killing with a deadly weapon was admitted. There was no pretense that the wound was not designedly given. The intent to take life was presumable from the nature of the weapon used.” Strong, J., Kilpatrick v. Com., 81 Pa. 198, 216. But beyond this, the jury were so specifically instructed on the necessity of the existence of the intent to kill that they could not have had a possible doubt about it. The first part of the very point in controversy was that “ the burden is on the commonwealth to prove beyond a reasonable doubt the deliberate and premeditated intent to take life.” Not only was this affirmed, but subsequently in affirming the defendant’s fourth point, the jury were again told that if they had a reasonable doubt about the prisoner’s “ having premeditatedly and deliberately formed a specific intent to take life ” then he was entitled to the benefit of that doubt and could not be convicted of murder of the first degree. A jury thus twice explicitly told that the intent must be deliberate and premeditated and beyond a reasonable doubt, could have had no question that it must be fully formed. But the real animus of the point, and the real complaint of its refusal, were not founded on the few words about the fully formed intent, but on what followed, that if, “ the act was the immediate offspring of rashness and impetuous temper” the prisoner could not be convicted. This as already said was the proposition which the defense fought for and rested upon throughout the case. All four of the points now under consideration were mere variations in the expression of the same idea, which was put forth most clearly in the third point, that if the jury believe “ that when the prisoner shot the deceased, his mind was governed by such influences over which he had no control, then he cannot be convicted of murder.” No such loose and dangerous doctrine has any foothold in our law. Ungoverned and uncontrolled temper is no defense to-crime, and does not even reduce killing to manslaughter unless it is produced by immediate and legally sufficient provocation. Of this, as already said, there is not a scintilla of evidence. The latter part of the defendant’s first point, which was refused, was but the statement of this proposition in a covert form, the affirmance of which would have been clear error against the commonwealth.

We have thus gone over all the assignments in detail, and we find no error in them. There is no case in our books of more-willful and deliberate killing, nor any for a more trivial cause, nor more wanting in any circumstance of palliation. There was no defense. The attempt at it was so flimsy that the mere statement of it in the charge gave it an apparent importance which its merits did not sustain, and which only the carefulness of the law for the preservation of a prisoner’s rights could justify. The judge, feeling the character of the case, set it before the jury in such clear light that a failure of justice could only occur through their willful disregard of the law and the evidence. If his charge seems to lean heavily towards conviction, it is because the evidence only admitted of that result. It was a plain recital of the admitted facts, the evidence, and the law fairly applicable to the case. It nowhere trespassed in any degree on the province of the jury, though it made plain to them their duty to convict. In so doing the judge was but discharging his own duty. When the law of England punished even petty larcenies with death, the humanity of judges sought to mitigate its Draconian severity, in advance of legislative reform, by extreme technicality in favor of life, but the necessity for that has gone by. The law is and always will be. careful of prisoners’ rights and tender of human life, but in the present day of mild punishments and scrupulous if not cowardly juries, who shrink from the performance of plain but disagreeable duties, there is no occasion for courts to strain unsubstantial technicalities in favor of criminals whose guilt is clear, and whose defenses will not stand the test of common sense and credibility.

The judgment is affirmed and the record remitted to the court of oyer and terminer for the purpose of execution.