Commonwealth v. Carroll

• Decision Date: 19 April 1937
• Docket Number: 129
• Citation: 326 Pa. 135,191 A. 610
• Parties: Commonwealth v. Carroll, Appellant
• Court: Pennsylvania Supreme Court

191 A. 610

326 Pa. 135

Commonwealth v. Carroll, Appellant

No. 129

Supreme Court of Pennsylvania

April 19, 1937

Argued January 27, 1937

Appeal, No. 129, Jan. T., 1937, from judgment of Q.S. Phila Co., Sept. Sessions, 1936, Nos. 50 and 51, in case of Commonwealth v. Robert Carroll. Judgment reversed and venire facias de novo awarded.

Indictments for murder and for voluntary and involuntary manslaughter. Before KUN, J.

The opinion of the Supreme Court states the facts.

Verdict of guilty of murder in the second degree and judgment of sentence thereon. Defendant appealed.

Errors assigned were an excerpt from the charge of the trial judge and the sentence.

The judgment is reversed and a venire facias de novo is awarded.

William T. Connor, with him John R. K. Scott, for appellant.

Vincent P. McDevitt, with him Ephraim Lipschutz, Assistant District Attorneys, and Charles F. Kelley, District Attorney, for appellee.

Before SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.

OPINION

MR. JUSTICE MAXEY:

The appellant was indicted in two bills of indictment, one charged murder and the other voluntary and involuntary manslaughter. He was convicted of murder in the second degree and sentenced to imprisonment for a maximum term of 20 years and a minimum term of 6 years.

Fuller B. Conway met his death as a result of being struck a number of blows by the appellant, on August 17, 1936. This appeal is based on the court's statement to the jury that he saw in this case no basis from a legal standpoint for a manslaughter charge, saying "there is no evidence here that there was any sudden heat of passion developed. Blows were struck evidently calmly and deliberately, but the defendant says that he did it in self-defense."

An eyewitness to the homicide testified that he witnessed the fatal meeting between the appellant and the deceased and that after some conversation between the two the defendant attempted to push the deceased away. He said, "They got to fighting and Conway was down. Conway got up and Carroll hit him again, and he went down again, that was the second time." The witness was asked if he (defendant) attacked the man after he was down the second time, and he answered: "Yes, I pulled him off, and he [Carroll] kicked at him [Conway]." This witness testified that Carroll struck the first blow. He said that "Carroll was fighting, Conway could not fight." Another witness testified that Carroll hit Conway, that Conway fell, that he got up and Carroll hit him again and he fell.

The defendant testified as follows: "He [the deceased] made a pass at me, but did not hit me, and I pushed him with my hand, and he fell. When he got up he came to me again and struck me on the side of the head. He scrambled in the street and I hit him at close range with all my force, and he fell flat on the curb, and did not get up any more."

Every unlawful killing is presumed to be murder in the second degree, and "the burden of reducing the crime from murder to manslaughter where it is proved that the prisoner committed the deed, lies on him": Com. v. Drum, 58 Pa. 9. In any case where there is...