Com. v. Mulgrew

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtBefore EAGEN; O'BRIEN
Citation380 A.2d 349,475 Pa. 271
Decision Date01 December 1977
PartiesCOMMONWEALTH of Pennsylvania v. Warren Paul MULGREW, Appellant (two cases).

Page 349

380 A.2d 349
475 Pa. 271
COMMONWEALTH of Pennsylvania
v.
Warren Paul MULGREW, Appellant (two cases).
Supreme Court of Pennsylvania.
Argued March 11, 1977.
Decided Dec. 1, 1977.

Page 350

[475 Pa. 272] Vincent C. Murovich, Jr., Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Robert A. Zunich, Pittsburgh, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, and MANDERINO, JJ.

OPINION OF THE COURT

O'BRIEN, Justice.

On January 12, 1976, appellant, Warren Paul Mulgrew, was tried by a judge sitting with a jury and found guilty of [475 Pa. 273] murder of the third degree, carrying a firearm without a license, and use of a firearm in a crime of violence. The above conviction arose from the homicide of Harry Fowler on July 2, 1975. On April 1, 1976, appellant's post-verdict motions were denied. Appellant then filed a motion to reconsider the post-verdict motions, which was denied on May 25, 1976. Appellant was sentenced to a term of imprisonment of not less than ten nor more than twenty years for the conviction of murder of the third degree, and a consecutive two-and-one-half-to-five year sentence for the firearms convictions. Appellant appealed the judgment of sentence of murder of the third degree to this court and appealed the judgments of sentence in the firearms violations to the Superior Court. The Superior Court, on August 9, 1976, certified to this court the appeal for the firearms convictions.

Appellant argues that the court below erred in failing to charge the jury on the consequences of a verdict of not guilty by reason of insanity. We agree.

Appellant requested the following instruction:

"1. If you find that the defendant was insane at the time of the shooting, he will be acquitted on the ground of insanity. However, this Court has the power to order the defendant to be kept in strict custody, in such place and in such manner as this Court shall see fit so long as such person shall continue to be of unsound mind."

The above point for charge did not correctly state the applicable law at the time of the trial concerning the confinement to mental hospitals of persons acquitted of crimes by reason of insanity.

Appellant relied on the Act of March 31, 1860, P.L. 427 Sect. 66, as amended by the Act of April 17, 1929, P.L 532, § 2, which read:

"In every case in which it shall be given in evidence upon the trial of any person charged with any crime or misdemeanor, that such person was insane at the time of the commission of such offence, and he shall be acquitted, [475 Pa. 274] the jury shall be required to find specially whether such person was insane at the time of the commission of such offence, and to declare whether he was acquitted by them on the ground of such insanity; and if they shall so find and declare, the court before whom the trial is had shall order the cost of prosecution to be paid by the county, and shall have power to order him to be kept in strict custody, in such place and in such manner as to the said court shall seem fit, at the expense of the county in which the trial is had, so long as such person shall continue to be of unsound mind."

This court, in Commonwealth ex rel. DiEmilio v. Shovlin, 449 Pa. 177, 295 A.2d 320 (1972), determined that the "Mental Health and Mental Retardation Act of 1966", Special Sess. No. 3, October 20, P.L. 96, art. IV, § 413, 50 P.S. § 4413, "repealed and replaced" the Act of 1860. The applicable law at the time of the instant trial 1 was:

Page 351

"(a) Whenever any person charged with any crime is acquitted on the ground of insanity or having been insane at the time he committed the crime, the jury or the court as the case may be, shall state such reason for acquittal in its verdict.

"(b) In such event, the court may direct the Attorney for the Commonwealth to act as petitioner to initiate commitment proceedings under section 406."

We believe that the requested point for charge, although erroneous, "(sufficiently) alert(ed) the trial judge to an important issue in the case". Commonwealth v. Sisak, 436 Pa. 262, 270, n. 5, 259 A.2d 428, 432, n. 5 (1969). Therefore, [475 Pa. 275] merits of the issue are properly before this court for appellate review.

Appellant argues that the court below erred in failing to instruct the jury concerning the consequences of a verdict of not guilty by reason of insanity. We agree and reverse the judgments of sentence and remand the case for a new trial.

The trial court, relying on Commonwealth v. Gable, 323 Pa. 449, 187 A. 393 (1936), rejected appellant's requested charge. In Commonwealth v. Gable, supra, this court summarily rejected a similar point for charge by saying:

"The third question involves the proposition that, in a homicide case, where the defense is insanity, the trial judge must state, when requested to do so, that if the verdict is not guilty by reason of insanity, it will be his duty to send the defendant to a state institution for the insane. With this the jury has nothing to do and it was not error to refuse to so tell them."

Today, we overrule Commonwealth v. Gable, supra, and hold that it is proper to...

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43 practice notes
  • Com. v. Trill
    • United States
    • Superior Court of Pennsylvania
    • July 8, 1988
    ...he chould [sic] be committed to a mental treatment facility [emphasis added]." Trill insists that the case of Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977), mandates that the court recite that "[the defendant] will be subject to an immediate court The scope of appellate review o......
  • People v. Moore, Cr. B001306
    • United States
    • California Court of Appeals
    • March 15, 1985
    ...footnotes 5, 7 and 8. 5 Roberts v. State (Fla.1976) 335 So.2d 285; State v. Krol (1975) 68 N.J. 236, 344 A.2d 289; Com. v. Mulgrew (1977) 475 Pa. 271, 380 A.2d 349. 6 Kan.Stat.Ann. (1981) section 22-3423; Tenn.Code Ann. (1984) section 33-7-303(e). 7 Schade v. State (Alaska 1973) 512 P.2d 90......
  • State v. Arpin, No. 77-208-C
    • United States
    • United States State Supreme Court of Rhode Island
    • February 7, 1980
    ...timely exception has placed the merits-of-the-instruction issue properly before this court. See [122 R.I. 666] Commonwealth v. Mulgrew, 475 Pa. 271, 274-75, 380 A.2d 349, 351 We do not agree that the trial justice in this case had an obligation to instruct the jury in accordance with the pr......
  • State v. Becker, No. 10–0631.
    • United States
    • United States State Supreme Court of Iowa
    • July 20, 2012
    ...290 N.C. 1, 224 S.E.2d 595, 603–04 (1976); State v. George, 337 Or. 329, 97 P.3d 656, 662 (2004) (en banc); Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349, 350 (1977); Glasscock v. State, 570 S.W.2d 354, 356 (Tenn.Crim.App.1978); State v. Shickles, 760 P.2d 291, 298 (Utah 1988), abrogat......
  • Request a trial to view additional results
43 cases
  • Com. v. Trill
    • United States
    • Superior Court of Pennsylvania
    • July 8, 1988
    ...he chould [sic] be committed to a mental treatment facility [emphasis added]." Trill insists that the case of Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977), mandates that the court recite that "[the defendant] will be subject to an immediate court The scope of appellate review o......
  • People v. Moore, Cr. B001306
    • United States
    • California Court of Appeals
    • March 15, 1985
    ...footnotes 5, 7 and 8. 5 Roberts v. State (Fla.1976) 335 So.2d 285; State v. Krol (1975) 68 N.J. 236, 344 A.2d 289; Com. v. Mulgrew (1977) 475 Pa. 271, 380 A.2d 349. 6 Kan.Stat.Ann. (1981) section 22-3423; Tenn.Code Ann. (1984) section 33-7-303(e). 7 Schade v. State (Alaska 1973) 512 P.2d 90......
  • State v. Arpin, No. 77-208-C
    • United States
    • United States State Supreme Court of Rhode Island
    • February 7, 1980
    ...timely exception has placed the merits-of-the-instruction issue properly before this court. See [122 R.I. 666] Commonwealth v. Mulgrew, 475 Pa. 271, 274-75, 380 A.2d 349, 351 We do not agree that the trial justice in this case had an obligation to instruct the jury in accordance with the pr......
  • State v. Becker, No. 10–0631.
    • United States
    • United States State Supreme Court of Iowa
    • July 20, 2012
    ...290 N.C. 1, 224 S.E.2d 595, 603–04 (1976); State v. George, 337 Or. 329, 97 P.3d 656, 662 (2004) (en banc); Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349, 350 (1977); Glasscock v. State, 570 S.W.2d 354, 356 (Tenn.Crim.App.1978); State v. Shickles, 760 P.2d 291, 298 (Utah 1988), abrogat......
  • Request a trial to view additional results

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