137 A.2d 472 (Pa. 1958), Commonwealth v. Redline

Citation:137 A.2d 472, 391 Pa. 486
Opinion Judge:Author: Jones
Party Name:COMMONWEALTH of Pennsylvania v. James W. REDLINE, Appellant.
Case Date:January 10, 1958
Court:Supreme Court of Pennsylvania

Page 472

137 A.2d 472 (Pa. 1958)

391 Pa. 486

COMMONWEALTH of Pennsylvania


James W. REDLINE, Appellant.

Supreme Court of Pennsylvania.

January 10, 1958.

Page 473

[391 Pa. 488] M. Bernard Hoffman, Joseph E. De Santis, Reading, for appellant.

Frederick O. Brubaker, Dist. Atty., Peter f. Cianci, Asst. Dist. Atty., Reading, for appellee.



The defendant was convicted of murder in the first degree with penalty fixed at life imprisonment for the death of his co-felon from a gunshot would inflicted by a police officer endeavoring to apprehend the two culprits who were attempting to flee the scene of their armed robbery. From the judgment of sentence entered on the jury's verdict, the defendant has appealed [391 Pa. 489] contending that he cannot, under any rational legal theory, be charged with murder for his accomplice's death since the killing was done by an officer of the law engaged in the performance of his duty and was, therefore, a justifiable homicide. Opposed to this, the Commonwealth maintains that the defendant is not only chargeable with murder for his confederate's death under the rationale of Commonwealth v. Thomas, 382 Pa. 639, 117 A.2d 204, but, also, on the ruling in Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 12 A.L.R.2d 183, the proofs being that the defendant initiated and provoked the fusilade of shots one of which, admittedly from a policeman's gun, mortally wounded the co-felon. 1

In the Thomas case, the defendant was held answerable to an indictment for murder for the killing of his accomplice by the victim of their robbery, the malice requisite being imputed because of the defendant's contemporaneous participation in the initial felony. The conclusion reached in the Thomas case was a further extension of the felony-murder doctrine as applied in Commonwealth v. Almeida. The opinion for the court in the Thomas case relied for its principal authority on the decision in Almeida and also cited the more recent case of Commonwealth v. Bolish, 381 Pa. 500, 113 A.2d 464. But, Bolish is plainly distinguishable from Almeida, while the instant case, whose operative evidential elements are basically similar to those of the Thomas case, is distinguishable from both Almeida and Bolish. The decision in the Almeida [391 Pa. 490] case was a radical departure from common law criminal jurisprudence; and the ruling should not be extended by still further judicial enlargement. A review of relevant authorities will so confirm.

The only constitutional power competent to define crimes and prescribe punishments therefor is the legislature, and courts do well to leave the promulgation of police regulations to the people's chosen

Page 474

legislative representatives. No killing under circumstances such as the instant case presents had ever before been declared murder in this State prior to the ruling in Commonwealth v. Thomas, supra. If predominant present-day thinking should deem it necessary to the public's safety and security that felons be made chargeable with murder for all deaths occurring in and about the perpetration of their felonies--regardless of how or by whom such fatalities came--the legislature should be looked to for competent exercise of the State's sovereign police power to that end which has never yet been legislatively ordained. 2

The material facts of the instant case may be briefly stated. And, inasmuch as the jury's verdict rejected the defendant's self-exculpatory testimony, we shall accept the facts and circumstances of the robbery and killing as recited in the Commonwealth's counter history of the case.

Around midnight of April 11, 1956, Redline, the present defendant, and his companion, Erbor Worseck, [391 Pa. 491] perpetrated at gun point a robbery of certain persons in the Midway Restaurant in Reading. During the course of the crime, two police officers were disarmed and held captive in the establishment. The defendant and his accomplice Worseck, fleeing the scene, compelled one Raymond R. Herschman to accompany them. Redline was the first to leave the building, behind him was Herschman and behind Herschman was Worseck. As they were departing, uniformed police officers outside bore down upon them. Redline, seeing one of the officers, shouted to him, 'The man you want is in there [apparently meaning the building he had just left].' With that, Redline aimed a 45-caliber revolver at the policeman, who was then approximately fifteen to twenty feet distant, and fired point-blank but failed to hit his intended victim. Prior to this shot by Redline, there had been no shooting whatever. The policeman immediately returned the fire, and there then ensued a gun battle involving several policemen and the defendant and Worseck. During the course of the shooting, two policemen were seriously wounded, the defendant himself was wounded and so was Worseck. The latter's wound, which admittedly was inflicted by a bullet from a policeman's gun, proved fatal. It was Worseck's death for which Redline was indicted, tried and convicted for murder. As stipulated of record at trial, no bullet from the defendant's gun ever touched Worseck.

The above recited circumstances would, of course, support a serious criminal charge against Redline but not for murder. He was a willing participant in an armed robbery for which he could be indicted and found guilty at common law and, more lately in this State, under a pertinent statute. But, he is not chargeable under any known relevant rule of law, save for the decision in the Thomas case, supra, with murder for [391 Pa. 492] the death of his co-felon. The question here involved calls for a complete review of the felony-murder theory.

The definition of murder at English common law, which was carried forward by our Act of January 28, 1777, 1 Sm.L. 429, alone defines the crime in this State. Consequently, in re-examining the felony-murder doctrine, both as to its origin and development generally and its application in Pennsylvania, it is to be kept in mind that, except for one special and presently irrelevant mode of death-dealing by means

Page 475

of intentional train-wrecking, 3 there is no statutory crime of murder in Pennsylvania. The so-called murder statute of this State is but a categorizing of common law murder into two degrees--a dichotomy still unrecognized in England whence the definition of murder as known and applied in Pennsylvania was derived. In fact, the General Assembly of this State was the first legislative body in America to divide the crime of murder into degrees (see Section 2 of the Act of 1794, supra). Since then, more of the other States of the Union have adopted similar statutes. See Keedy, A Problem of First Degree murder: Fisher v. United States, 99 U. of Pa.L.Rev. 267 (1950).

Although degrees of murder were, and still are, unknown to the common law, three classes of homicide are there recognized, the term 'homicide' being generic and embracing every killing of a human being by another: 1 Warren, Homicide, § 54 (Perm.Ed.); IV Blackstone, Commentaries, * 177. The classifications of homicide at common law are (1) justifiable, (2) excusable and (3) felonious. 'The first has no share of guilt at all; the second very little; but the third is the highest crime against the law of nature that man is capable of committing': IV Blackstone, Commentaries,[391 Pa. 493] * 178. A justifiable homicide is such as is committed either by command or, at least, with the permission of the law, e. g., execution of a convicted criminal, apprehension of an escaping felon, etc.; an excusable homicide is such as is committed either per infortunium (i. e., accidentally) or se defendendo (i. e., in self defense): IV Blackstone, Commentaries, * 178-186; and a felonious homicide (i. e., murder) occurs when a person of sound memory and discretion unlawfully and feloniously kills any human being in the peace of the sovereign with malice prepense or aforethought, express or implied: see IV Blackstone, Commentaries, * 195; 1 Warren, Homicide, § 63; 1 Wharton, Criminal Law, § 419 (12th Ed.).

Such is substantially the definition of murder which this court adopted in Commonwealth v. Drum, 58 Pa. 9, and which has ever since been uniformly applied by this court in the multitude of murder trials that has followed: see, e. g., Commonwealth v. Buzard, 365 Pa. 511, 76 A.2d 394, 22 A.L.R.2d 846. The proof requirements necessary to establish a case of murder, as defined in the Buzard case, are no different than they were at the time of Commonwealth v. Drum, supra. The 'reasonable creature in being' specified in the common law definition of murder, as stated in the Drum case, was none other than the human being whose death at the hands of another is still necessary to constitute a homicide. 'The distinguishing criterion of murder', as recognized in the Drum case, 'is malice aforethought.' And, that continues to be true today. Malice is the 'grand criterion which now distinguishes murder from other killing': IV Blackstone, Commentaries, * 198.

In certain circumstances the malice essential to murder need be neither prepense nor express. For instance, at common law an accidental or unintentional [391 Pa. 494] homicide committed in the perpetration of or attempt to perpetrate a felony is murder, the malice necessary to make the killing murder being constructively imputed by the malice incident to the perpetration of the initial felony. Thus, 'if one intends to do another felony, and undesignedly kills a man, this is also murder': IV Blackstone, Commentaries, * 200-201. This type of felonious homicide, known as felony-murder, became firmly imbedded in the common law. It had its origin in antiquity...

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