Com. v. Moore

• Decision Date: 31 December 1959
• Parties: , 93 A.L.R.2d 616 COMMONWEALTH of Pennsylvania v. Leola MOORE, Appellant.
• Court: Pennsylvania Supreme Court

Page 65

157 A.2d 65

398 Pa. 198, 93 A.L.R.2d 616

COMMONWEALTH of Pennsylvania v. Leola MOORE, Appellant.

Supreme Court of Pennsylvania.

Dec. 31, 1959.

John J. Krafsig, Jr., Harrisburg, for appellant.

Huette F. Dowling, Dist. Atty., and John A. Roe, Asst. Dist. Atty., Harrisburg, for appellee.

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

BENJAMIN R. JONES, Justice.

The defendant, Leola Moore, was found guilty of voluntary manslaughter by a jury in the Court of Oyer and Terminer of Dauphin County and by that court sentenced to pay a fine of $5 and to be committed to the State Industrial Home for Women for an indeterminate term. From that judgment of sentence this appeal was taken.

Isaac David Moore and Leola Moore, husband and wife, lived at 1608 Wallace Street, Harrisburg, having come to Harrisburg from South Carolina several years prior to the incident which gave rise to this criminal prosecution. On the mid-afternoon of July 5, 1958, in his home, Isaac Moore received at the hands of Leola Moore, the defendant, a wound which resulted in his death. ¹

At approximately 3:15 p. m. on that date the deceased entered his home and, finding the defendant in the dining room, inquired why she had not prepared anything to eat; the defendant explained that she had cleaned the kitchen floor and was waiting for it to dry but the deceased, instead of accepting this explanation, cursed defendant. The defendant went into the kitchen followed by the deceased. Defendant picked up a butcher knife, 11 1/8 inches long, and returned to the dining room. The deceased from the kitchen threw a portable radio at defendant which, according to defendant, struck her and, according to the Commonwealth, landed near her feet. Defendant then started toward the living room and the deceased started following her. Defendant turned, raised her arm and stabbed the deceased inflicting a wound which caused his death within an hour. Although unarmed as he followed defendant, the deceased was saying something and in an angry mood. There was no evidence of any attempt on defendant's part to run away from deceased, although there was evidence on the part of the Commonwealth that she could have left the house by the back door before her husband followed her to the kitchen or by the front door after deceased had thrown the radio at her.

Dr. Lippard described the character of the wound inflicted: 'Yes, the wound, as I say, entered the soft parts of shoulder. It went behind the main bone of the arm. It vented, of course, across the arm pit and then entered the chest between the fourth and fifth ribs. It then went across the chest and cut open the sac which covers the heart. It then terminated at one of the major arteries which leave the heart, the pulmonary artery'. Although the knife blade was 11 1/8 inches long the wound to the pulmonary artery was somewhat longer from which the inference may be drawn that the knife was wielded with force.

Defendant contends: (1) the trial court erred in overruling her demurrer at the close of the Commonwealth's case and thus her motion in arrest of judgment should be granted; (2) the trial court was in error in allowing the jurors to deliberate for eleven hours--7:08 p. m. to 6:10 a. m.--without making any provision for them to rest and sleep; (3) the trial court erred in permitting the Commonwealth, in rebuttal, to present the testimony of a witness concerning a threat alleged to have been made by defendant four months prior to the homicide; (4) the verdict of the jury was against the weight of the evidence.

Defendant's first contention, i. e. that her motion in arrest of judgment should be granted, is premised upon the alleged failure of the Commonwealth to prove that the killing of deceased was intentional. In considering this contention the defendant would have us review the refusal of the court below to sustain her demurrer which we cannot do. Commonwealth v. Spanos, 167 Pa.Super. 629, 631, 76 A.2d 243 and cases therein cited. The Act of June 15, 1951, P.L. 585, Section 1, 19 P.S. § 871, provides: 'Hereafter, in all criminal prosecutions in this Commonwealth in which the Jury shall have rendered a verdict against the defendant, the defendant may * * * make a motion in arrest of judgment on the grounds that the evidence was insufficient to sustain the charge, and if the court, after consideration of the entire record, shall decide that there is not sufficient evidence to sustain the conviction, it shall forthwith discharge the defendant and dismiss the case.' Under this statutory provision we consider the 'entire record' in passing upon the motion in arrest of judgment and, in so doing, the sufficiency of the evidence must be tested according to the Commonwealth's testimony and the reasonable inferences arising therefrom. Commonwealth v. Wright, 383 Pa. 532, 119 A.2d 492; Commonwealth v. Jackson, 187 Pa.Super. 2, 144 A.2d 249; Commonwealth v. Elias, 186 Pa.Super. 137, 140 A.2d 341.

Time and time again this Court has held that the fatal use of a deadly weapon against a vital part of the body of another, when established as a fact, warrants the inference that the act was done with the specific intent to take life. ² Our present Chief Justice, speaking for this Court in Commonwealth v. Jones, 355 Pa. 522, 527, 50 A.2d 317, 319, stated: 'It is in respect of the alleged intent to take life that the appellant ascribes failure to the Commonwealth's proofs in the instant case, apparently overlooking the fact that such intent, being subjective, is often unsusceptible of direct proof but must be found in the implications of objective manifestations, such as the character of the weapon used by the slayer. Not infrequently, therefore, specific intent to take life is shown by proof of the offender's use of a deadly weapon, for while an intention to kill may be shown by the defendant's expressed words or declarations or other conduct, such intent may be just as effectively inferred from the deliberate use of a deadly weapon upon a vital part for a manifest purpose. [Citing cases.]' See also Commonwealth v. Nelson, 396 Pa. 359, 152 A.2d 913; Commonwealth v. Ballem, 386 Pa. 20, 123 A.2d 728; Commonwealth v. Vassar, 370 Pa. 551, 561, 88 A.2d 725; Commonwealth v. Wucherer, 351 Pa. 305, 312, 41 A.2d 574; Commonwealth v. Kelly, 333 Pa. 280, 4 A.2d 805; Commonwealth v. Drum, 58 Pa. 9. Apparently conceding that the knife was a 'deadly weapon', defendant argues that the knife was not used on a 'vital part' of deceased's body and, therefore, the inference of a specific intent to kill did not arise. In this connection it is argued that Dr. Lippard changed his testimony in respect to whether or not the wound was inflicted on a 'vital part' of the deceased's body? On direct examination Dr. Lippard testified: 'Q. Now Doctor, there has been some reference in remarks in this case as to vital part of the body. Would you determine from your experience whether or not you regard the area wounded as a vital part of the body? A. Yes, definitely a most vital part of the body.' (Emphasis supplied.) On cross-examination the doctor testified: 'Q. Now, do you consider the fleshy part of the arm behind the bone as a vital part of the body? A. No.' It is obvious that the doctor did not change his testimony and that in his opinion the area wounded was a 'vital part' of deceased's body. The court below in its opinion well covered this situation: 'The fact that in reaching this most vital part of the body the knife passed through the flesh of the upper arm is of no moment. A weapon may be used in such a way that death is improbable; however, we must consider not only the nature of the weapon, but also the manner in which it is used and all the attending circumstances: Commonwealth v. Kluska, 1939, 333 Pa. 65, 3 A.2d 398. In the instant case the weapon is a butcher knife 11 inches long, secured and used by the defendant against her husband who was unarmed and thrust with such force and in such a manner that it caused a stabbing wound longer than its blade in a diagonal path into the heart.' No more vital area exists in the human body than the heart area: it was in this area that defendant wounded her husband and from the use of the knife in the manner in which it was employed, from the wound which it inflicted and under all the circumstances the inference was fully warranted that defendant's act was done with the specific intent to take life. This contention of the defendant is without merit.

Defendant next argues that the court erred in keeping the jury together for an unusually long time without opportunity to rest and thus prejudiced the defendant. During the trial the jury had had rooms at the Penn-Harris Hotel. On the last day of the trial the jurors checked out of the hotel and brought their luggage with them to the courthouse. The jury retired for deliberation on the verdict at 7:08 p. m. after which time the jurors were fed. At 11:15 p. m. the jury requested and were given additional instructions on the various degrees of homicide and, in the words of the trial judge, at that time 'gave no indications of fatigue or illness'. At approximately 3 a. m. counsel for the defendant requested that the jury be given sleeping quarters and that their deliberation be suspended while they rested and slept, but this request was refused. On his own volition the trial judge called the jury into the court room at 5:00 a. m. The following colloquy then took place:

'The Court: Are there any questions that you think the Court might be able to answer; any additional questions that you might have that would help? This is, of course, an important case, as you well know, and you have deliberated on it very conscientiously. It is an important case to both the Commonwealth and the defense and the verdict, of course, must be unanimous, and we want to give you every opportunity to continue to...