Commonwealth v. Weinberg

• Decision Date: 29 January 1923
• Docket Number: 8
• Citation: 120 A. 406,276 Pa. 255
• Parties: Commonwealth v. Weinberg, Appellant
• Court: Pennsylvania Supreme Court

120 A. 406

276 Pa. 255

Commonwealth v. Weinberg, Appellant

No. 8

Supreme Court of Pennsylvania

January 29, 1923

Argued January 3, 1923

Appeal, No. 8, Oct. T., 1923, by defendant, from judgment of O. & T. Lawrence Co., March T., 1922, No. 1, on verdict of manslaughter, in case of Commonwealth v. Lewis Weinberg. Affirmed.

Indictment for murder and voluntary manslaughter. Before EMERY, P.J.

The opinion of the Supreme Court states the facts.

Verdict of guilty of manslaughter on which judgment of sentence was passed. Defendant appealed.

Errors assigned, inter alia, were various instructions covered only by a general exception to the charge, quoting record.

The judgment is affirmed, and it is ordered that the defendant appear in the court below at such time as he may be there called and that he be by that court committed until he has complied with the sentence or any part of it which had not been performed at the time the appeal in this case was made a supersedeas.

Thomas W. Dickey, with him Martin & Martin, for appellant. -- The verdict did not find defendant guilty as charged in the second count.

The law of self-defense is not limited to courageous persons nor does the law require that the jury must be without doubt as to defendant believing he was in danger of his life or of great bodily harm: Logue v. Com., 38 Pa. 265; Tiffany v. Com., 121 Pa. 165; Com. v. Palmer, 222 Pa 299; Coyle v. Com., 100 Pa. 573; Meyers v. Com., 83 Pa. 131.

Jas. A Chambers, with him R. L. Hildebrand, for appellee. -- The indictment contained two counts, one for murder, one for voluntary manslaughter. The jury found defendant guilty of manslaughter. This was in effect finding him guilty of voluntary manslaughter: Com. v. Gable, 7 S. & R. 423; Walters et al. v. Com., 44 Pa. 135; Com. v. Greevy, 75 Pa.Super. 116, 124.

The charge as to self-defense was proper: Com. v. Drum, 58 Pa. 9; Com. v. Paese, 220 Pa. 371; Com. v. Calhoun, 238 Pa. 474; Com. v. Palmer, 222 Pa. 299.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. CHIEF JUSTICE MOSCHZISKER:

Lewis Weinberg appeals from a sentence on conviction of manslaughter.

On December 17, 1921, defendant, a constable in the City of New Castle, had a dispute with John Margel, which gave rise to a quarrel wherein the former shot and killed the latter. Appellant was indicted and tried for murder; he pleaded self-defense, but the following verdict was rendered: "We . . . find defendant . . . guilty of manslaughter and recommend him to the mercy of the court." Appellant makes objection that there is "no distinction in the finding of the jury as between voluntary and involuntary manslaughter, and that the verdict is not on any count in the indictment." As to this ground of complaint, it is sufficient to say that, since a person tried for murder cannot be found guilty of involuntary manslaughter, a conviction of manslaughter, on an indictment such as the one before us, must be considered as a finding of voluntary manslaughter: Com. v. Gable, 7 S. & R. 422, 424; see also Walters v. Com., 44 Pa. 135, 139, and Com. v. Greevy, 271 Pa. 95, 100.

The trial judge mentioned "involuntary manslaughter" to the extent of defining it in the early part of his charge; but, when doing so he merely followed the course set by Justice AGNEW in Com. v. Drum, 58 Pa. 9, 17. There was no evidence of involuntary manslaughter, and we do not see that its incidental mention could possibly have done defendant any harm.

In Com. v. Drum, supra, 18, the charge, often since approved, contains this language: "All homicide [committed with a deadly weapon under circumstances which indicate the assailant must have known death was likely to ensue] is presumed to be malicious, that is, murder of some degree, until the contrary appears in evidence; therefore the burden of reducing the crime from murder to manslaughter, where it is proved that the prisoner committed the deed, lies on him. He [the defendant] must show all the circumstances of alleviation or excuse upon which he relies to reduce his offense from murder to a milder kind of homicide, unless, indeed, where the facts already in evidence show it." In the present case, the court instructed accordingly, and we see no merit in the complaints concerning that part of the charge.

The trial judge when referring to the rule that to warrant killing in self-defense the evidence must show circumstances attending the act such as reasonably to create a belief of great and imminent danger, employed the phrase, "in the mind of a reasonable and ordinarily courageous man"; but, on the facts of the instant case, this constitutes no proper ground of complaint. The quality of defendant's courage was not made an issue, and the judge's instructions did not so present it; the expression "ordinarily courageous man" was used in a most incidental way. No special objection to the use of this expression was entered at trial, and we feel that, since every man is presumed to possess ordinary courage, and there was nothing to show anything to the contrary so far as defendant is concerned, the part of the charge here brought in question could not have done him any harm.

Before taking up the third assignment of error, which is the only one requiring special consideration, we call attention to the fact that all of defendant's fifteen points for charge, except the last, asking for binding instructions, were affirmed by the trial judge; these requests are well drawn and cover the general law relevant to the case, particularly the rules governing the plea of self-defense. Moreover, the greater part of the charge gives elaborate consideration to the law of self-defense, and the trial judge repeatedly told the jury that, if they believed defendant had a reasonable and honest conviction, even though mistaken, that he was in imminent danger of losing his life or suffering great bodily harm at the hands of deceased, and he killed with that belief in his mind, the deed was justifiable, and defendant should be acquitted.

During the course of the charge, and in answers to requests, the jury were told that the burden of proving defendant guilty "never shifts but rests on the prosecution throughout," and "if from any or all the evidence taken together a reasonable doubt of defendant's guilt exists, or is raised, there should be an acquittal." At one point, however, the court said, "the defendant having set up . . . self-defense, which he claims justified him in taking the life of his assailant, you must be convinced of the truthfulness of that defense by the weight of the evidence," immediately adding, "that is there must be no...