Com. v. Ladd

• Decision Date: 01 December 1960
• Citation: 402 Pa. 164,166 A.2d 501
• Parties: COMMONWEALTH of Pennsylvania v. Roy LADD, Appellant (two cases).
• Court: Pennsylvania Supreme Court

Page 501

166 A.2d 501

402 Pa. 164

COMMONWEALTH of Pennsylvania v. Roy LADD, Appellant (two cases).

Supreme Court of Pennsylvania.

Dec. 1, 1960.

Rehearing Denied Dec. 30, 1960.

Neil W. Burd, Philadelphia, for appellant.

Richard M. Rosenbleeth, Domenick Vitullo, Asst. Dist. Attys., Paul M. Chalfin, First Asst. Dist. Atty., Victor H. Blanc, Dist. Atty., Philadelphia, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK and EAGEN, JJ.

BOK, Justice.

Appellant defendant was indicted in two bills, one for murder and one for manslaughter. Both indictments alleged that the victim of the assault was struck on September 21, 1958, and died of it on November 1, 1959. He moved to quash the indictments for the reason that it is the common law of Pennsylvania that no one is responsible for a killing where death ensues beyond a year and a day after the stroke. The court below overruled the motions and defendant appealed. Whether the year and a day rule is and still should be current among us is the single question.

This court has not decided it before.

The only Pennsylvania authority is Commonwealth v. Evaul, 1922, 5 D. & C. 105, when Judge Gordon assumed that the rule existed in Pennsylvania in cases of felonious homicide but refused to extend it to the misdemeanor of involuntary manslaughter, which was the case he had before him. However, he mentioned the existence of confusion over the nature of the rule and cited Heydon's Case, 4 Coke's Reports 41, where the time was held to run from the death and not from the stroke.

In the instant case the court below also felt that as late as 1736, when Sir Matthew Hale's 'History of the Pleas of the Crown' was published, there was disagreement among common law scholars over the nature of the rule and the time from which it ran.

We are of course concerned with the date of May 14, 1776, when such of the common and statutory law of England as had theretofore been in force in the province of Pennsylvania became the law of the Commonwealth by the Act of January 28, 1777, 1 Sm.L. 429, Sec. 2, 46 P.S. § 152.

At common law there were three ways of dealing with murder and manslaughter. One was by indictment at the suit of the King, and this became in England and the United States what we recognize as public prosecution. The second was by an appeal of death, which was a private and vindictive process by an interested party and which grew out of the old Germanic custom of 'weregild', or compensation for the death. The third was by inquisition against deodands, which is of no present interest because it involved the forfeiture of personal chattels that had caused death.

Blackstone defines murder in Chapter 14, Book IV, of the Commentaries (1769), at page 195, and gives the year and a day rule, timed from the stroke in prosecutions for murder, at page 197. He then discusses prosecutions and appeals in Chapter 23, Book IV, pp. 299-312, and at page 311 shows that by the Statute of Gloucester, 6 Edw. 1, c. 9 (1278), 'all appeals of death must be sued within a year and a day after the completion of the felony by the death of the party.' Appeals of death, not prosecution for murder, were involved in the Statute of Gloucester and they were later abolished during the reign of George III.

To the same effect is Sir Matthew Hale, Vol. 1, 'Historia Placitorum Coronae' (1736), p. 425 et seq. Other common law writers also give the year and a day rule for murder as beginning with the stroke: Hawkins, Vol. 1 'Pleas of the Crown', Curwood ed. 1824, p. 91; Halsbury, Vol. 9 'Laws of England', Hailsham ed. 1933, Sec. 734, p. 428; East, Vol. 1 'Pleas of the Crown', pp. 214 and 343; 3 Chitty, Perkins ed. 1836, p. 722; 3 Stephen 'History of Criminal Law of England', p. 7; 1 Russell on Crime, turner 10th ed. 1950; Perkins on Criminal Law, Univ. Text Book Series, 1957, p. 605.

Only one writer throws doubt on the doctrine that the year and a day rule runs from the stroke in prosecutions for murder and from the death in appeals of death. This is Sir Edward Coke, 3 'Institutes of Laws of England', Chapter VII. On page 47 he states the rule as follows:

'Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum nature under the king's peace, with malice forethought, either expressed by the party, or implied by law, so as the party wounded, or hurt, &c. die of the wound, or hurt, &c. within a year and a day after the same.'

Then at page 52 this occurs:

'But seeing the year and day in the case of murder and homicide, must be accounted apres le fait, after the deed, if a man be stricken or poisoned, etc. the first day of January, and he dieth of that stroke or poison the first day of May, whether shall the year and day be accounted after the stroke or poison given, or after the death? and it shall be accounted after the death, for then the man was murdered, and not after the stroke or poison given, &c. both in the indictment at the suit of the king, and in the appeal at the suit of the party. And so it hath been often adjudged * * *.' (Emphasis added.)

This is the only instance in our research where the rule is said to run from the death both in public prosecutions for murder and in private appeals of death.

In the United States whatever confusion there may have been was put at rest by the Supreme Court in Louisville E. & St. L. R. Co. v. Clarke, 1894, 152 U.S. 230, 14 S.Ct. 579, 581, 38 L.Ed. 422, where Mr. Justice Harlan said:

'Ought we to allow this obvious construction of the statute to be defeated by any rule recognized at common law as controlling upon an inquiry as to the cause of death in cases of murder, appeals of death, or inquisitions against deodands?

'In cases of murder the rule at common law undoubtedly was that no person should be adjudged, 'by any act whatever, to kill another, who does not die by it within a year and a day thereafter, in computation whereof the whole day on which the hurt was done shall be reckoned first.' 1 Hawk., P.C. c. 13; 2 Hawk., P.C. c. 23, § 88; 4 Bl.Comm. 197, 306.'

Taking up appeals of death, the Court went on, quoting from Comyn, 2 Inst. 320, tit. 'Appeals', D:

'By the statute of Gloucester, 6 Edw. I, c. 9, an appeal shall not abate by want of fresh suit, if brought in a year and a day after the fact done; which statute is, by construction, restrained to an appeal for the death of a man. And, therefore, an appeal upon the death of a man may be within the year and day, though there be not any fresh suit; within a year and a day after the death, though the blow was given before.'

From this we conclude that in prosecutions for murder the year and a day rule runs from the time the fatal blow was given or the cause of death administered, and that this rule, so interpreted, was part of the common law of England in and before 1776. However, whether the rule theretofore had become part of the law of the Commonwealth is unnecessary for us to decide because we are of opinion that it is not part of the definition of murder but only a rule of evidence or procedure.

The Supreme Court of the United States, in the Clarke case, said: 'In prosecutions for murder the rule was one simply of criminal evidence.' Among the States only a few have classified the rule as being one of evidence, procedure, or pleading, on the one hand, or as being part of the definition of murder or as an essential element of it or as a matter of substance, on the other. In the following cases the court has explicitly held the rule to be one of evidence or procedure: People v. Clark, 1951, 106 Cal.App.2d 271, 235 P.2d 56; Head v. State, 1943, 68 Ga.App. 759, 24 S.E.2d 145; Elliott v. Mills, Okl.Cr.1959, 335 [402 Pa. 170] P.2d 1104; State v. Huff, 1876, 11 Nev. 17. In Head v. State, supra, 68 Ga.App. 759, 24 S.E.2d 145, 147, the Court of Appeals of Georgia said:

'However, the question before us is not one of offense, but one of procedure and evidence * * *

'The courts of all the States that have dealt with the question * * * have with one accord held that unless death results within a year and a day from the date of the infliction of the mortal would it is not criminal homicide. * * * The reasoning followed by the courts in the majority of the jurisdictions will be found well expressed in State v. Dailey, 191 Ind. 678, 134 N.E. 481, 20 A.L.R. [1004], 1006, supra. * * * For decisions of other States following the majority view see Howard v. State, 24 Ala.App. 512, 137 So. 532; Roberts v. State, 17 Ariz. 159(2), 149 P. 380; Kee v. State, 28 Ark. 155; People v. Kelly, 6 Cal. 210; State v. Bantley, 44 Conn. 537, 26 Am.Rep. 486; People v. Corder, 306 Ill. 264, 137 N.E. 845; Epps v. State, 102 Ind. 539, 1 N.E. 491; Rose v. Commonwealth, 156 Ky. 817, 162 S.W. 107; State v. Conley, 39 Me. 78; Commonwealth v. Snell, 189 Mass. 12, 75 N.E. 75, 3 L.R.A., N.S., 1019; State v. Keerl, 29 Mont. 508, 75 P. 362, 101 Am.St.Rep. 579; Debney v. State, 45 Neb. 856, 64 N.W. 446, 34 L.R.A. 851; Bowen v. State, 1 Or. 270; Hardin v. State, 4 Tex.App. 355; Clark v. Commonwealth, 90 Va. 360(4), 18 S.E. 440; State v. Phillips, 59 Wash. 252, 109 P 1047; Ball v. United States, 140 U.S. 118, 11 S.Ct. 761, 35 L.Ed. 377.'

To these can be added, to show the extent of the rule in the United States: State v. Moore, 1941, 196 La. 617, 199 So. 661; Chapman v. People, 1878, 39 Mich. 357; State v. Borders, Mo.1917, 199 S.W. 180; State v. Orrell, 1826, 1 Dev.L. 139, 12 N.C. 139, 17 Am.Dec. 563; Percer v. State, 1907, 118 Tenn. 765, 103 S.W. 780; and State v. Spadoni, 1926, 137 Wash. 684, 243 P. 854.

Of these, the Louisiana, Michigan, and Washington cases speak of the rule as an essential averment or a substantive element, but no case within our research has built the rule into the definition of murder beyond the point indicated. A sample is theChapman case from Michigan, where the court s...