Commonwealth v. Ward.

• Court: Pennsylvania District and County Court
• Writing for the Court: Gordon, Jr.
• Citation: 17D.&C.605
• Docket Number: Sept. Sess., 1932, Nos. 83 and 84.
• Decision Date: 06 February 1933
• Parties: Commonwealth v. Ward.

Page 605

17 D.&C. 605

Commonwealth v. Ward.

Sept. Sess., 1932, Nos. 83 and 84.

The Judicial Districts of Pennsylvania.

February 6, 1933.

Murder — Penalty — Death or life imprisonment — Discretion of court — Circumstances attending offense — Social and ethical factors — Premeditation — Wanton disregard of life — Principles governing decision — Usefulness in other cases.

1. In determining whether the death penalty or life imprisonment shall be imposed for the offense of murder in the first degree, the court or jury exercises an unhampered freedom of choice, having regard to fundamental considerations of social ethics and to all the circumstances attending the particular crime, especially defendant's motive and the element of premeditation.

2. As a general proposition, the death penalty is more appropriate for murders accompanied by circumstances showing wanton disregard of life, cold and calculating cruelty or a depraved and vicious character, than in those cases where the offense is committed under the stress of overpowering psychic impulses.

3. No fixed rules or formulae may be established for the determination of the question whether death or life imprisonment shall be imposed as the punishment for first-degree murder, and all statements of such principles are useful only as a basis of approach to the problem and not as intruding upon the free exercise of the conscientious judgment of those upon whom the duty may from time to time devolve.

4. Where the district attorney states on his official responsibility that he does not seek the death penalty in an indictment for first-degree murder and that he does not feel that capital punishment should be inflicted under the circumstances of the case, while the ultimate responsibility to determine the penalty remains with the court or jury, the advisory judgment and recommendation of the prosecuting officer is entitled to consideration as an expression of the wish of the Commonwealth, which is the wronged party plaintiff.

Indictment for murder. Q.S. Phila. Co.

Harry Shapiro, assistant district attorney, for Commonwealth.

Henry M. Stevenson, for defendant.

GORDON, JR., J., February 6, 1933.

The prisoner at the bar, Arthur Ward, having pleaded guilty to an indictment for murder, the case is before the court en banc for the purpose of fixing the degree of the crime and determining the penalty to be imposed. The controlling facts of the case are as follows: The murder was committed on the highway at about 6 o'clock in the afternoon of August 1, 1932, in the neighborhood of Norris and Warnock Streets, in the City of Philadelphia. During the morning of that day, and up until 11 o'clock, Ward, the prisoner, had drunk about three pints of home-made wine, which, according to some of the witnesses, had been "laced," that is to say, had been mixed with a quantity of hard liquor. However, from the evidence presented, we are satisfied that, when the murder was committed, the prisoner was not under the influence of liquor, but was in full possession of his faculties. This is mentioned at this time because of a suggestion, thrown out at the hearing, that Ward may have been under the influence of liquor when the crime was committed, and in order definitely to indicate our belief and finding upon this subject. Shortly before the killing, the prisoner went to the home of his sister-in-law, where, after remaining for a time, he secured two revolvers, one of which he loaded, and then left the house. There is no evidence of what he intended doing with the revolvers, except his own statement that his purpose was to pawn them. Whether this was his real purpose in procuring them, we do not know, but we give him the benefit of belief in this particular, since there is nothing to indicate that he had them in his possession for a criminal purpose. However, this possession of firearms without a license was a serious criminal offense, for which he was liable to arrest on sight and to serve punishment. After leaving the house the prisoner entered the vestibule of a vacant house at No. 2037 Warnock Street through an opening in its storm-door, which was in a dilapidated condition. Isadore Reinheimer, the deceased, a police officer on duty in uniform, noticed the prisoner in the vestibule and crawled through the hole in the door, placed the prisoner under arrest, searched him, found concealed inside his trousers the unloaded revolver and took possession of it. Reinheimer failed, however, to discover the loaded revolver, which Ward says he was holding concealed by his cap in his left hand. The officer then handcuffed his prisoner with an "iron claw," a form of single handcuff, and led him out of the building and down the street toward a firehouse, intending to send him from there to the police station. After they had proceeded down the street about a block, Ward suddenly began firing at the officer with the revolver he had retained, and endeavored to wrench himself free. In the scuffle Reinheimer drew his own pistol and fell to the ground. This released the prisoner, who thereupon disarmed the officer, and, with the latter's own weapon, fired additional shots at him. The prisoner then fled, and was captured about a half-hour later on the roof of a nearby house. There is evidence that during the course of the capture the prisoner fired a shot or shots at officers who were endeavoring to take him into custody. This evidence is contradicted, and it is difficult to reach a definite conclusion as to the fact. From the view we take of the case, however, we do not think that this shooting, if it actually did occur, is of any importance. It occurred after the killing, and at best merely confirms the already clear indications of the prisoner's frame of mind at the time. Officer Reinheimer had been shot four times — once in each arm, once in the leg and once in the middle of the back — the shot in the back being the fatal wound.

The evidence discloses that the prisoner's past life has been free from acts or circumstances indicating a vicious or depraved character. While he has been involved in trouble with the police on one or two occasions, it was for minor offenses, and he has never been charged with crime of a serious nature. Those who know him bear witness to his being a man of average intelligence, of an amiable disposition, not inclined to violence or brutality, that his habits with respect to the use of intoxicating liquor are neither better nor worse than those of the average user, and that when under its influence he is not quarrelsome.

From the foregoing facts it is clear that this homicide was murder of the first degree. It was a killing in an attempt to escape from custody after a lawful arrest. The concealing of the loaded weapon at the time of the arrest, and the period of time (about five minutes), short though it was, that elapsed between the arrest and the beginning of the shooting, compel the conclusion that the killing was characterized by sufficient deliberation and premeditation to make it murder of the first degree, which we accordingly find it to be.

We now come to the question of the penalty to be imposed. In considering this question, it should be...