Com. v. Bolish

Decision Date10 January 1958
Citation391 Pa. 550,138 A.2d 447
PartiesCOMMONWEALTH of Pennsylvania v. Daniel BOLISH.
CourtPennsylvania Supreme Court

Daniel Bolish, pro se., William J. McDonald, Edwin Utan, Scranton, for appellant.

Carlon M. O'Malley, Dist. Atty., Ralph P. Needle, Asst. Dist. Atty., Scranton, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, CHIDSEY, MUSMANNO, ARNOLD, BENJAMIN R. JONES and COHEN, JJ.

ARNOLD, Justice.

Defendant had been convicted of the crime of murder in the first degree and the penalty fixed at death. On appeal (Commonewalth v. Bolish, 381 Pa. 500, 113 A.2d 464), while affirming the action of the court below on the principal question as to felony murder, the death having resulted from an act in furtherance of the criminal conspiracy, this Court reversed because of certain trial errors and granted a new trial. Upon retrial the jury rendered a verdict of guilty of murder in the first degree and fixed the penalty at life imprisonment. This appeal followed.

The facts in this case were fully reported in Commonwealth v. Bolish, 381 Pa. 500, 113 A.2d 464. A resume of what is more fully stated in the report of that case follows.

The Commonwealth contended that the decedent, Flynn, met his death as a result of arson, and that his death was a murder in the commission of a felony in which defendant was one of the principals. The Commonwealth's evidence was entirely circumstantial. In the early morning of July 22, 1953, an explosion, followed by fire, occurred in a house owned by Mrs. Mary Torti in Dunmore Borough, Lackawanna County. This house was of two stories, consisting of a kitchen and living room on the first floor and two bedrooms and bath on the second floor. It had been vacated several months prior to the explosion, at which time there was no furniture therein.

Firemen arrived several minutes after the explosion and found the interior filled with intense heat, the woodwork and the walls scorched and and burnt, and fire playing around the screen on the front door. The firemen found on the kitchen floor an electric hot plate and electric cord three feet long. The electricity was turned on. The fire originated at or near the hot plate, near with a pad was found which gave off the odor of kerosene. Close by was broken glass which appeared to be parts of a glass jar in which had been placed some volatile substance. There was the odor of gasoline in the kitchen. According to Commonwealth's experts, the fire was caused by an explosion of volatile material on the hot plate. The odor of kerosene remained up to the date of trial, indicating that a large amount of kerosene had been on the floor. It was established that about 30 to 50 seconds after the electric current was applied to the hot plate or the volatile material thereon, an explosion would occur. When she had departed from the house, Mary Torti had cleaned and vacated it, and no hot plate had been left there.

Flynn, the deceased, was seen about four o'clock in the morning on July 22 in a coal company's office in Dunmore. He was badly burned, sought water from a night watchman, and died nineteen hours later as a result of the burns. The Commonwealth established a trail of flesh, fragments of material, and discarded shoes, from the Torti house to within 150 feet of the coal company office. The Commonwealth's expert, Dr. Mary L. Willard, testified that in her opinion, hair adhering to the venetian blind in the Torti house came from the head of the deceased. The discarded shoes, previously mentioned, also belonged to Flynn. In short, the evidence was sufficient to prove, beyond a reasonable doubt, that Flynn was in the Torti house when the fire and explosion took place early in the morning of July 22nd, and that he died as a result of the fire.

There was no direct evidence that the defendant, by his own hand, committed the arson which resulted in the death of his accomplice. There were, however, both direct and circumstantial evidence showing the presence of Bolish in the Torti house at the time of the explosion.

On the second trial, defendant took the stand and denied all incriminating evidence. In its opinion refusing motion for new trial and arrest of judgment, the court below declared: 'To say the least his [defendant's] denials and explanations were unconvincing, evasive and contradictory, and the jury apparently had no difficulty in rejecting his story in the face of the strong, detailed and closely knit chain of circumstances submitted in evidence by the Commonwealth'. Our review of the testimony firmly establishes the justice of this conclusion.

The main contention of defendant is that the felony-murder doctrine does not apply to the death of an accomplice resulting from the accomplice's own act in the perpetration of arson. But, the fallacy in this contention lies in the disregard of defendant's active participation in the arson of which the killing was a direct result. As we heretofore pointed out, defendant was present at the time of the commission of the crime of arson and the resulting explosion. Thus he was actively participating in the felony which resulted in death. The element of malice, present in the design of defendant, necessarily must be imputed to the resulting killing, and made him responsible for the death. This defendant's position is no different than that of the defendant in Commonwealth v. Thompson, 321 Pa. 327, 184 A. 97; Commonwealth v. Guida, 341 Pa. 305, 19 A.2d 98, and countless other cases wherein the death resulted, directly from the perpetration of the felony. The fact that the victim was an accomplice does not alter the situation, since his own act which caused his death was in furtherance of the felony.

No trial errors are now complained of, and since, as we have found, the accomplice's death was a direct result of defendant's active participation in the act leading to the death, he must be held responsible for it.

In accordance with the Act of February 15, 1870, P.L. 15, § 2, 19 P.S. § 1187, we have reviewed both the law and the evidence in this record, and have determined that all the ingredients necessary to constitute murder in the first degree have been proved to exist.

Judgment of sentence affirmed.

MUSMANNO, Justice (dissenting).

On September 26, 1955, the then Majority of this Court handed down a decision (Commonwealth v. Thomas, 382 Pa. 639, 117 A.2d 204) 1 based on one of the most illogical doctrines ever announced in a criminal case. The decision was not a juridical conclusion but, in effect, a legislative fiat; it was not a decision founded on authority and precedent, but an arbitrary edict which declared an act to be murder which was never murder before.

The facts in the Thomas case were very simple. Two men, Henry Thomas and Henry Jackson, entered a grocery store in Philadelphia for the purpose of committing a robbery. While Jackson covered the grocer with his revolver, Thomas gathered up the money from the cash register and then both fled. The grocer, as the bandits ran, seized his own revolver behind the counter and gave pursuit to Jackson who returned the fire which the grocer poured at him. In this gun battle Jackson was killed. Thomas was later arrested and charged with murder under the so-called felony-murder doctrine.

It was agreed by all parties concerned that Thomas had no hand in the killing of his confederate Jackson and that he was not actually present at the moment that the grocer's bullet cut Jackson down. The killing was the result of an attempt, which succeeded, on the part of the bandits' victim to prevent the escape of a robber who had just robbed him. Such a killing is recognized by law not only as justifiable but, in some instances, recommendable in the interests of law and order.

On these facts, however, this Court declared on September 26, 1956, that Thomas could be convicted of first degree murder. In all the time which has elapsed since that declaration was made, I have not heard one lawyer speak of it approvingly. 2 No State in the United States and no jurisdiction in the legal world, so far as I have been able to determine, has supported so Draconian a concept.

The Thomas case came to our Court in the following circumstances. After the Commonwealth had presented its evidence at Thomas's trial on the charge of murder, his attorney demurred, arguing that, admitting the presented facts to be true, the Commonwealth had still not presented a prima facie case of murder, according to established law. The lower Court agreed, and granted the demurrer. The Commonwealth appealed. This Court heard the appeal, reversed the judgment of the lower Court, and 3 ordered the case back for retrial on the murder charge.

But when the mandate of this Court arrived in the Court of Oyer and Terminer of Philadelphia County, where Thomas had originally been tried, an extraordinary thing occurred. The District Attorney declined to try Thomas for murder. In fact, he did the precise opposite. He entered a nolle prosequi of the murder indictment. He also nol-prossed the voluntary and involuntary manslaughter indictments. He was willing to take, and did take from Thomas a plea of guilty to robbery which, of course, is what Thomas's crime was, all the time--not murder.

The nolle prosequi was filed, of course, with the approval of the Court of Oyer and Terminer, the same Court which had originally decided, through a brilliant and courageous Opinion written by the distinguished Judge Guerin, that Thomas could not be convicted of murder.

That is the amazing and inglorious history of the Thomas case. The rule laid down in the decision entered in that case endured a little over two years and it is today being overruled by Commonwealth v. Redline, Pa., 137 A.2d 472. In an admirable, scholarly, and gripping Opinion, Chief Justice Jones, following what he had said in his Dissenting Opinion in the Thomas case, now authoritatively shatters...

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5 cases
  • Com. ex rel. Smith v. Myers
    • United States
    • Pennsylvania Supreme Court
    • 30 Enero 1970
    ...first theory seems to be that taken by the majority in Commonwealth v. Bolish, decided on the same day that Redline was decided, 391 Pa. 550, 138 A.2d 447 (1958), which affirmed Bolish's second conviction after the first had been reversed for trial errors. The Court pointed out, at page 553......
  • State v. Pellegrino
    • United States
    • Connecticut Supreme Court
    • 21 Agosto 1984
    ...v. Sotteriou, 132 N.J.Super. 403, 334 A.2d 47 (1975), cert. denied, 70 N.J. 144, 358 A.2d 191 (1976) (manslaughter); Commonwealth v. Bolish, 391 Pa. 550, 138 A.2d 447 (1958) (felony murder). In reliance upon these cases, he maintains that, where an accomplice accidentally kills himself, the......
  • United States ex rel. Bolish v. Maroney, 17292.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 24 Abril 1969
    ...prior litigation of relator in the state courts. See Commonwealth v. Bolish, 381 Pa. 500, 113 A.2d 464 (1955); Commonwealth v. Bolish, 391 Pa. 550, 138 A.2d 447, cert. den. 357 U.S. 931, 78 S.Ct. 1376, 2 L.Ed.2d 1373 (1958); Commonwealth ex rel. Bolish v. Banmiller, 396 Pa. 129, 151 A.2d 48......
  • Com. Ex. Rel. Bolish v. Rundle
    • United States
    • Pennsylvania Supreme Court
    • 17 Marzo 1964
  • Request a trial to view additional results

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