55 A. 781 (Pa. 1903), 46, Commonwealth v. Sutton

• Judge: Before MITCHELL, DEAN, FELL, BROWN and POTTER, JJ.
• Parties: Commonwealth v. Sutton, Appellant
• Docket Number: 46
• Citation: 55 A. 781,205 Pa. 605
• Court: Pennsylvania Supreme Court
• Date: 04 May 1903

Page 781

55 A. 781 (Pa. 1903)

205 Pa. 605

Commonwealth

v.

Sutton, Appellant

No. 46

Supreme Court of Pennsylvania

May 4, 1903

Argued: March 16, 1903

Appeal, No. 46, Jan. T., 1903, by defendant, from judgment and sentence of O. & T. Phila. Co., March Sessions, 1902, No. 514, on verdict of guilty of murder of the first degree, in case of Commonwealth v. George W. Sutton. Affirmed.

Indictment for murder. Before RALSTON, J.

Verdict of guilty of murder of the first degree upon which sentence of death was pronounced.

The facts and the material errors assigned sufficiently appear by the opinion of the Supreme Court.

The judgment is affirmed, and it is directed that the record be remitted to the court of oyer and terminer of Philadelphia county for the purpose of carrying the sentence into execution.

John McClintock, Jr., and Robert B. Kelly, for appellant. -- The court should have instructed the jury on the subject of manslaughter and to refuse to do so was error: Rhodes v. Com., 48 Pa. 396; Heine v. Com., 91 Pa. 145; Cathcart v. Com., 37 Pa. 108; Brown v. Com., 76 Pa. 319; McClain v. Com., 110 Pa. 263; Clark v. Com., 123 Pa. 555; McMeen v. Com., 114 Pa. 300; Com. v. Crossmire, 156 Pa. 304; Com. v. Eckerd, 174 Pa. 137; Com. v. Van Horn, 188 Pa. 143; Com. v. Hillman, 189 Pa. 548; Com. v. McGowan, 189 Pa. 641; Com. v. Morrison, 193 Pa. 613; Com. v. Sheets, 197 Pa. 69.

Frederick J. Shoyer, assistant district attorney, with him John Weaver, district attorney, for appellee.

Before MITCHELL, DEAN, FELL, BROWN and POTTER, JJ.

OPINION

[205 Pa. 606] MR. JUSTICE FELL:

The only specifications of error that need be noticed are those that relate to the failure of the court to define manslaughter, and to instruct the jury in relation thereto. By the fourth point the court was asked to charge: "Manslaughter is the unlawful and felonious killing of another without malice, either express or implied. Manslaughter differs from murder in this, that although the act which occasions the death be unlawful, or likely to be attended with bodily mischief, yet the malice either express or implied, which is the very essence of murder, to be wanting, and the act being imputed to is presumed to be wanting, and the act being imputed to the infirmity of human nature, the punishment is proportionately lenient;" by the fifth point: "Voluntary manslaughter is the unlawful killing of another without malice on sudden quarrel, or in the heat of passion;" and by the thirteenth point: "Where death results from the unlawful killing of another without malice on sudden quarrel, or in the heat of passion, [205 Pa. 607] the verdict should be manslaughter." The answer given by the court was that the fourth and fifth points were covered by the charge. The thirteenth was declined. This action of the court is alleged as error in the twenty-second, twenty-third and twenty-fourth assignments.

The facts connected with the killing of Gertrude Gothie that throw any light on the question to be considered are these: She was engaged to be married to the prisoner, but insisted upon his becoming a member of the Catholic Church before their marriage. He had not yielded to her wishes in this regard and had tried to induce her to marry him without his joining the church. On the 20th of February, 1902, she was confined to her bed by sickness. He called to see her and was in her room several minutes with her and her mother. Her mother, soon after leaving the room, heard the sound of a pistol shot, and returning found her daughter lying dead on the bed with three bullet wounds. The prisoner was lying partly on the bed, with a pistol in his hand and with one bullet would. The explanation made by the prisoner to the officers who arrested him and to others at the police station was that Gertrude...