Nevling v. Commonwealth

98 Pa. 322, 1881 Pa. LEXIS 158

• Court: Supreme Court of Pennsylvania
• Decided: October 3, 1881
• Status: Published

Opinion

Mr. Justice Green

delivered the opinion of the court

The learned counsel for the plaintiff in error candidly admits that his client was guilty of murder, and questions only the propriety of the conviction as to the degree of the crime. As the facts, and the degree of the offense, have been found by a jury, and there was abundant evidence to warrant the finding, we are precluded from considering the sufficiency of the testimony, and are limited to the precise and specific determination of the matters assigned for error.

The case in all its loading features was one of a very simple character and quite free of complicated questions. On the night of February Ifítli 1880, the prisoner and the deceased met at a store in Ilontzdale and after a few words went out on the street, apparently to fight. A brief contest took place, in which Pennington, the deceased, struck Nevling, the defendant, with a billy, and also a few blows with his fist while Nevling was on the ground. Pennington then desisted from further assaults, and' at the instance of the defendant they shook hands. Put on the same evening, to a number of different persons, Nevling made threats that lie would shoot Pennington the next day. The proof of these threats was so conclusive and came from so many different sources, that there was no attempt to contradict or iimpeach it in any manner. Oil the next morning Nevling armed himself with a loaded . gun and went out upon the streets of TIontzdale until lie met Pennington, who approached from an opposite direction and passed Nevling in perfect peace and quietness. No words passed between them, nor was there any demonstration of any kind on the part of Pennington toward the prisoner. Almost immediately after passing Pennington, Nevling turned about, lifted his gun, aimed it at the deceased, fired it off, and shot him in the back, inflicting wounds from which he died. After the shooting the prisoner declared lie liad done just what he intended to do, and expected to hang for it. One witness, Mr. W. H. Patterson, a member of the bar, who was present immediately after the shooting, testified as follows to a declaration made by Nevling in reply to a question put by the witness. “ He said on the night before that Pennington struck him on the head with a billy, and that was the reason that he shot him, and that he well knew that he would hang for it any how, and that he didn’t care.” The uneontradicted testimony disclosed a case in which a previous motive of revenge was shown to exist, threats were made the night before, and repeated the next morning, to shoot the deceased, which were followed by a preparation in accordance with the threats, and the deliberate consummation by the actual perpetration of the crime, in circumstances which were entirely devoid of extenuation or even of provocation. In such a condition of things the ordinary defences against accusations of murder were quite out of the question. An attempt to set up insanity was made, but it failed entirely for want of testimony. The only serious effort that was made on behalf of the defendant, was an endeavor to reduce the grade of the crime from the first to the second degree. This was based upon an allegation that the prisoner was in a condition of gross intoxication at the time of the offence, that he had long been of intemperate habits, and that his mind was in such a condition that, while he was criminally responsible for his act as an act of murder, yet it was not “fully conscious of its own purposes,” and did not deliberate or premeditate in the sense of the-act describing murder in the first degree. It was argued that at the time of the commission of the offence the defendant did not possess “ the self-determining power which, in sane mind, renders it conscious of the real nature of its own purposes and capable of resisting wrong impulses.” The decision of this court in the case of Jones v. Commonwealth, 25 P. F. S. 403, is the basis upon which it was sought to found this defence. An examination of that case, however, shows that the conclusion there reached was based upon the peculiar faqts exhibited by the testimony, and was limited to the inferences which naturally arose from them. As the defendant liad plead guilty it became necessary for the court to determine the degree of the offence,, and this was done upon a consideration of all the facts of the case. The controlling facts are thus indicated in the opinion livered by Chief Justice Agnew: “William S. Jones had been ppon bad terms with his wife, she had “become too intimate with another Jones called Charley. William S. J ones, failing to break off the association, got to drinking hard, and, finally after another quarrel with his wife on the 10th of June 1871 attempted suicide by taking a large quantity of laudanum. Dr. Davis found him lying on a lounge, partly insensible, eyes nearly closed, pupils contracted, and face disclored by congestion. Energetic remedies were used and he was so far restored as to be out of danger, but the effects of the laudanum remained. From this time until the night of the 19 th of June, when he took the life of Mrs. Hughes, his mother-in-law, he was in a constant state of nervous excitement, continued drinking and had bottles of laudanum about his person. Many witnesses describe him as without sense, constantly talking nonsense, wild in appearance, and-incoherent in speech. Some say he acted like a man drinking hard, was intoxicated, and once fell from a horse. Others described him as looking crazy, talking to himself, his hands going, his head thrown back, walking to and fro, throwing his head about, swinging his arms, and wild, nervous and excited. He would jump upon a chair and begin to preach and run off upon Charley Jones and his wife; said he was going to build a tavern on the mountain and a church beside it; claimed all the prop-, erty about, and was evidently much out of the way. These appearances were particularly noticed on the 19th day of June, tho-day of the homicide.” The foregoing facts, together with tho consideration that Jones had been on pleasant terms with his mo1her-in-law, had made no threats against her, and had shot her under a sudden impulse after she had raised a stool, telling him she would level him with it if he did not leave, induced, this court to believe that it was “a matter of grave doubt whether his frame of mind was such that he was capable of deliberation or premeditation.” The facts in the foregoing case were so radically dissimilar to those of the case under consideration, that they constitute no precedent to be now followed. The principles stated in the opinion, which were supposed to be applicable, were presented to the court below, on the trial of Nev-ling, in the form of points, and the answers to these, and certain language in the general charge, constitute the subjects of the principal assignments of error. We proceed to refer to them in their order.

The first assignment complains of a portion of the charge relating to the character of the doubt requisite to justify an acquittal. We see no error even in the selected sentences which . are claimed to be erroneous. When taken in connection with the other comments of the judge on the same subject, not embraced in the specification, it is quite plain that the charge is not obnoxious to the criticism made upon it. The learned 'judge, in immediate precedence to, and in direct connection with, the language complained of, had defined with great care and ¡perfect legal accuracy, the duty of the Commonwealth to establish the prisoner’s guilt, “ by clear and satisfactory evidence beyond a reasonable doubt;” that “the Commonwealth in all eases must prove everything that is necessary to constitute the crime, prove it fully and clearly to the satisfaction of the jury beyond a reasonable doubt. If the Commonwealth fails to make out any of the necessary parts of the crime, the result- of it is, that the jury must acquit the defendant: or if the evidence, after it is all heard by the jury, leaves the question of the guilt of the prisoner in doubt so that it is difficult to determine whether he is guilty or not, the doubt must work the acquittal of the defendant.” The learned judge then proceeded to say that the doubt must be a reasonable one, and that jurymen could not doubt as jurymen what they believed as men. In all this there was no error. It is the familiar language found in the text-hooks and decisions which treat of the subject. The whole language of the judge must be taken, together and we fail entirely to perceive any tendency to mislead the jury, or to lower the grade of proof required to convict.

There was certainly no error in the language complained of in the second assignment. It was a mere general description of the mental capacity which subjects individuals to responsibility for their criminal acts, and of the incapacity which relieves them of that responssbility. It is not alleged that there was any positive error in this portion of the charge, but is rather argued that there was error by implication in leading the jury to suppose that there were but two classes of men, either those wholly sound and therefore responsible, or wholly unsound and therefore entirely irresponsible. We see no such meaning in the language of the judge, and we think what was said was quite pertinent to the case.

There is no merit in the third assignment, and it is not really pressed.

As to the fourth assignment the learned counsel for the plaintiff in error admits that there was no error in what was said by the judge. It was indeed a most favorable presentment of the defendant’s theory. But it is said, as before, that the jury were not herein instructed as to the difference in the grades of the offence. Granting this, it proves nothing as to the erroneous character of this portion of the charge. The judge was not bound to he constantly presenting that 'one view of the ease. It was not an answer to a point, but a part of tbe general charge, and was strictly correct.

The subject-matter of the fifth assignment is the statement by the court in an isolated sentence as to what the question was which was in dispute. The court stated it to be, “ whether the defendant was in such a condition as to be capable to form a design to kill and did kill, in pursuance of that design.” This was said at the end of an extended presentation of that part of the case which related to the condition of the defendant at the time of making the threats, and at the time of the shooting. After referring to the testimony as to the intoxication of the defendant, the court said to the jury : “ It becomes an important question in the case for you to determine whether or not he was in a condition to know and understand what he was saying and doing when he made these threats.” This was followed by the statement that if the defendant was, so drunk as to be unconscious of the meaning of the threats, they were of no account, but if he knew and understood their meaning, and if he carried them into execution, this would be evidence of deliberation and premeditation. After much further comment on this branch of the case, and with ample reference to the testimony, the judge further said : “ All of this is proper evidence for you to consider in determining whether he was in such a condition as to know what he had done, and whether he knew the consequences of his act. If he was in such a condition as to know what he was doing, and knew the consequences of his act, and did it in pursuance of a previously formed determination, then the law says he is guilty of murder in the first degree, but if he did the act without deliberation and premeditation, then he would be guilty of murder in the second degree.” Immediately following this is the language complained of in the fifth assignment. It seems to us to be a substantial statement of the essence of the controversy. What positions may have been taken in the oral argument of course we cannot tell — we can only deal with the record as we find it. There certainly is no error in anything the court said in presenting this part of the case. Whether there was any error of omission we cannot know except by the points and the answers to them. We fail to see anything in the facts of this case as developed by the testimony, to call for any more refined distinctions as to the defendant’s mental condition, than those which were contained in the charge and answers. The jury were instructed to find a verdict of murder in the second degree if they found the killing was done without deliberation or premeditation, and that was as favorable a presentment of that aspect of the case as the defendant could ask.

There was clearly no error in the sixth assignment. Every thing in the defendants’ second point was affirmed. The added remarks of the judge were entirely correct in every legal sense, and were but a seasonable precaution to be given to the jury in connection with the matter contained in the point. The defendant did not ask in the point for a distinction between the two degrees of murder, and therefore there was no error in not giving it. Pie only asked for an instruction that if the hypothesis of the point were true, he would not necessarily be guilty of murder in the first degree, and that was affirmed. The alternative of the proposition was also stated by court, and stated correctly.

As to the seventh assignment it must be admitted that the answer of the court to the defendant’s third point was obscure. But obscurity is not necessarily error. The only facts stated in the point are those which are essential to conviction, and if these are the facts to which the court referred in the answer, there was not only no error in the answer, but. it was a more emphatic expression in favor of the defendant than the point itself. This indeed is the literal interpretation of the words of the answer. If, however, the judge referred to the implied facts — implied from the negative form, of the point, to wit, that the jury must acquit, or convict of something less than murder in the first degree, if they should find that the defendant did not possess the self-determining power which, in a sane mind, renders it conscious of the real nature of, its own purposes and capable of resisting wrong impulses, then also the answer was correct in a legal sense, and the qualification, while it was unnecessary, did no harm. In either aspect there was no error in the answer.

As to the eighth assignment it is only necessary to say that the defendant’s fourth point was affirmed, and that the qualification added is in exact conformity with the distinction stated by Oh. J. Agnew in the case of Jones v. Commonwealth. In fact the fourth point is a literal copy of one sentence in Judge Agnew’s opinion, and the qualification is a substantial copy of the next sentence. The learned judge of the court below simply followed the example of the chief justice in presenting the qualification in immediate connection with the doctrine. Of course, there was nothing erroneous in what was said, nor any thing tending to mislead.

R inth assignment. In no point of view was it competent to give in evidence the declaration of Pennington to Glasgow on the 14th of February. It was no part of the res gestae, it was' not alleged that the declaration was even communicated to Nevliug, and it was altogether inapt to a defence of mental incapacity. . Had there been any evidence of an affray at the time of shooting and liad the threat, such as it was, been communicated to Nevling, it might have been admissible though of but little real weight in tile case. But in the actual circumstances of this case, it was totally irrelevant, and could have sub-served no proper purpose in the trial of the cause.

Tenth, eleventh and twelfth assignments. The question to Weible was asked to show the actual condition of Nevling just before the shooting. The witness had detailed the circumstances of the conduct and language of the prisoner at his store, and had given his opportunities for knowing the mental condition of the defendant at that time. The fact of impaired mental condition of the prisoner,- amounting to unconsciousness of his purposes, at the time of the shooting, was clearly competent to show by the witness, after proving the pertinent facts which occurred in his presence and hearing, whether sucli unconsciousness then existed. This is matter of every day practice in issues touching the sanity or capacity of persons. The opinion is competent if preceded by proof of actual facts affording opportunities of observation and inference. But the questions to Mr. and Mrs. Scott were entirely different in their character. They did not relate to the prisoner’s actual condition at the time of, or immediately before or after, the offence ; they were purely hypothetical, and they assumed as their basis a state of facts which was altogether disputed. Whether the prisoner was sane or insane when intoxicated was a mere general question, a pure matter of opinion, and the answer to it could not prove any thing as to his actual mental condition at the time of this occurrence. Both the witnesses were permitted to, and did, testify, to any facts within them knowledge as to the conduct and declarations of Nevling when he was intoxicated. Both of them said they did not see him on the day of the shooting, and- of course they did not know whether he was then intoxicated or not. The offer to prove their opinions in such circumstances Was clearly inadmissible.

The thirteenth assignment alleges a general tendency to mislead the jury in the charge. We have read the charge very carefully, and also the testimony delivered on the trial, and we are unable to observe any such tendency. On the contrary, it seems to us to bo a very correct, fair and impartial presentment of the law and the facts of the case. The chief complaint of the defendant under this assignment is that the court did not adequately present, and explain, to the jury the subject of a conviction of murder in the second degree. It is but fair to the court to say that none of the defendant’s points exhibited that question as an alternative, so as to require any special illustration of it. In some of the points it is claimed there could not-be a conviction of murder in the first degree, but the alternative of a conviction in the second degree was not suggested, and therefore, so far as the points are concerned, it does not appear that the distinction now contended for so earnestly was presented to the attention of the court. What may have been said in the oral argument, of course we do not know. So long as there was a chance of acquittal, it may not have been good policy to put in the point the suggestion of a conviction in the second degree as the alternative for a non-conviction in the first degree, but the court below could not be responsible for such omission. The points were properly answered, and the general charge was a correct and fair presentation of the whole case, and hence we cannot reverse.

Judgment affirmed, and it is ordered that the record be remitted to the Court of Oyer and Terminer of Clearfield County for the purpose of execution.