Commonwealth v. Colandro

Decision Date10 April 1911
Docket Number353
Citation80 A. 571,231 Pa. 343
PartiesCommonwealth v. Colandro, Appellant
CourtPennsylvania Supreme Court

Argued February 20, 1911

Appeal, No. 353, Jan. T., 1910, by defendant, from judgment of O. & T. Lackawanna Co., October Session, 1910, No. 13, on verdict of murder of the first degree in case of Commonwealth v. Dominic Colandro. Reversed.

Indictment for murder. Before NEWCOMB, J.

The opinion of the Supreme Court states the facts.

Verdict of guilty of murder of the first degree and judgment thereon. Defendant appealed.

The errors assigned are sufficiently indicated in the opinion.

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

H. L Taylor, of Taylor & Lewis, and A. A. Vosburg, for appellant. -- Evidence that deceased was in the habit of going armed with deadly weapons and that this fact was known to his slayer is admissible in behalf of the latter: King v State, 65 Miss. 576 (5 So. Repr. 97, 7 Am. St. Rep. 681); State v. Graham, 61 Iowa 608 (16 N.W. 743); Com. v. Keller, 191 Pa. 122; 3 Rice on Evidence, 580; Kerr on Homicide, sec. 400; Meyers v. Com., 83 Pa. 131.

There is no greater burden on the accused to establish self-defense by affirmative evidence than any other defense; but if all the evidence raises a reasonable doubt as to whether he acted in self-defense, he should be acquitted: Henson v. State, 112 Ala. 41 (21 So. Repr. 79); Lane v. State, 44 Fla. 105 (32 So. Repr. 896); Dent v. State, 105 Ala. 14 (17 So. Repr. 94); State v. Alexander, 66 Mo. 148; State v. Hill, 69 Mo. 451; People v. Riordan, 117 N.Y. 71 (22 N.E. Repr. 455); Briceland v. Com., 74 Pa. 463; Turner v. Com., 86 Pa. 54; Tiffany v. Com., 121 Pa. 165.

We have been unable to find any case which sustains the proposition that the reasonable doubt must arise only from the evidence which the jury believe. We think that the universal rule is that it must arise upon the consideration of all the evidence in the case taken together: Tiffany v. Com., 121 Pa. 165; Smith v. Compton, 67 N.J. Law, 548 (52 A. Repr. 386); Moore v. Dozier, 128 Ga. 90 (57 S.E. Repr. 110); Kimmel v. Kimmel, 3 S. & R. 336; Hanney v. Com., 116 Pa. 322.

The learned court was in error in his charge to the jury to the effect that the reputation of the appellant was his reputation among his acquaintances: Heine v. Com., 91 Pa. 145; Hanney v. Com., 116 Pa. 322.

C. P. O'Malley and Joseph O'Brien, district attorney, for appellee.

Before MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

The defendant, Dominic Colandro, an Italian workingman, came to this country in 1902, and at the time of the homicide, May 23, 1910, he was about thirty years of age. He testified that, about three months prior to the killing, Ferdinand Rocco, the deceased, had met him and demanded the sum of $200; that shortly thereafter he again met the defendant, produced a revolver, and threatened to kill him unless the demand was complied with; that on the day before the killing Rocco came to the defendant's house and told him that unless the money was paid he would be killed, which demand and threat were repeated on the afternoon of the day of the homicide; that immediately before the killing a messenger came and informed the defendant that Rocco wanted to see him; that the defendant refused to leave his house, and the messenger returned and said that Rocco would give him just ten minutes to come out; that another messenger then came and informed him that if he did not come out the deceased would come to the house and kill him within five minutes; that the defendant came out and met Rocco, who again demanded the money; that he became frightened and went back into his house and put his shotgun in the kitchen; that within a few minutes after this Rocco came to the kitchen door and pushed it open, told the defendant that he was going to kill him and started to shoot into the room with a revolver; that the defendant, fearing that he was in danger of losing his life, took up his gun and fired the fatal shot, and the deceased staggered back against a fence and fell over into the next yard dead.

According to the commonwealth's testimony, on the day before the killing Rocco had charged the defendant with having improperly secured $30.00 from another Italian and demanded that it be returned, stating that if the defendant did not return the money a certain Italian society would take the matter up; the defendant showed some feeling and told the deceased that it was none of his business; on the next day Rocco was visiting his mother, and when he left the house of the latter to go to his own home he was obliged to pass close by the defendant's door; the latter suddenly came out of his house with a gun and pointing it directly at Rocco shot him before there had been any words exchanged between them. The commonwealth claimed that it was a cold-blooded murder, and the defendant that he was in great fear at the time of the killing and shot to defend himself.

The first assignment is that the court erred in refusing the following offer: "Counsel for the defendant proposes to prove . . . that the decedent went armed, carried a revolver, and on the night preceding this affair he met the witness on the stand, attempted to shoot him, demanding money from him at the same time; for the purpose of showing that the dead man went armed and carried a revolver." A number of witnesses for the commonwealth testified that Rocco had no revolver at the time of the killing, and his brother-in-law testified positively that the deceased did not own one, evidently using the word "own" in the sense of "possess." Whether or not Rocco had a revolver was a material issue in the case, and if he had been seen with such a weapon on the night before the killing, it would at least have been some evidence to indicate that he possessed one. The offer was refused on the ground that as a whole it tended to introduce "a collateral issue entirely extrinsic to the issue on trial." While the ordinary rule is that where an offer blends irrelevant and inadmissible matters with a matter relevant and admissible, its rejection as a whole is not error, yet in Com. v. Bezek, 168 Pa. 603, referring to this rule, we said: "But in deciding the question raised by the specification we shall not take into consideration the rule supported by the cases cited. These are civil cases and if the rule stated in them is applicable to, it ought not to be summoned to sustain a ruling prejudicial to the interests of a defendant on trial for murder." So much of the offer as was relevant should have been admitted. The fact that some inseparable, incidental, collateral facts, irrelevant in themselves and prejudicial to the prosecution, might thus be caused to appear, would not make the competent part any the less admissible: Willis v. Bernard, 8 Bingham, 376. The possibility of prejudice could be sufficiently cured by restricting the use: Connecticut River Power Co. v. Dickinson, 74 A. Repr. 585; Dalton v. Dregge, 99 Mich. 250. The first assignment is sustained.

The second assignment complains that the trial judge said to the jury, "The burden of proving self-defense is on the defendant. To make out that defense he must prove it to your satisfaction. His claim rests on the assertion that Rocco was on the platform and at the kitchen door, where it is claimed he had fired several shots with a revolver under circumstances that put the defendant in fear of his own life or of great bodily harm. If the evidence so satisfies you, then he is entitled to be acquitted and your verdict will be not guilty, otherwise, you will find him guilty of murder and fix the degree according to instructions to be given you presently. I can see no basis for a claim of self-defense other than that which is put forward by the defendant, and that makes it necessary that he satisfy you that his version of the shooting is correct." Previous to this the court had said to the jury that self-defense was "the one issue" arising from the evidence, and that the possibility of "manslaughter" was not in the case.

There was no error in saying that the burden of proving self-defense was upon the defendant and that it would have to be shown to the satisfaction of the jury: Com. v. Palmer, 222 Pa. 299; Ortwein v. Com., 76 Pa. 414; Coyle v. Com., 100 Pa. 573; Com. v. Wireback, 190 Pa. 138; Alexander v. Com., 105 Pa. 1; Com. v. Ferruchi, 219 Pa. 155. But the learned trial judge should have added that they would only have to be satisfied by the fair preponderance of the evidence. Where a defendant sets up self-defense and undertakes to establish his excuse, the evidence relied upon, whether it comes from his side, or from the commonwealth's side, or from both (Wharton on Homicide, 3d ed., pp. 552-553), must, when weighed, show by its fair preponderance the extenuation sought to be established, in order to acquit: Com. v. Palmer, 222 Pa. 299. In trying a case of this character, the court should have two principles in mind to communicate to the jury for their guidance, namely, (1) while all the ingredients necessary to prove the commonwealth's case must be shown beyond a reasonable doubt, (2) this severe rule does not apply in considering an affirmative defense; there a fair preponderance of the evidence in favor of the defendant is sufficient: Meyers v. Com., 83 Pa. 131; Com. v. Deitrick, 218 Pa. 36.

It was error to tell the jury that self-defense was the onlyissue and to eliminate the possibility of manslaughter; and again, it was error to say that it was necessary for the defendant to satisfy the jury that his version of the shooting was correct. In a murder case the jury are not bound to accept the version of the commonwealth or that of the...

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1 books & journal articles
  • Malice in Nebraska
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 76, 2021
    • Invalid date
    ...Id. at 386-87, 543 N.W.2d at 729-30. 254. Id. at 387, 543 N.W.2d at 730. 255. Id. at 393, 543 N.W.2d at 733 (Gerrard, J., dissenting). 256. 80 A. 571 (Pa. 1911). 257. Id. at 574. Several jurisdictions follow the direction of Colandro. See People v. Flannel, 603 P.2d 1 (Cal. 1979); Faulkner ......

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