Commonwealth v. Colandro

CourtUnited States State Supreme Court of Pennsylvania
Citation231 Pa. 343,80 A. 571
PartiesCOMMONWEALTH v. COLANDRO.
Decision Date10 April 1911
80 A. 571
231 Pa. 343

COMMONWEALTH
v.
COLANDRO.

Supreme Court of Pennsylvania.

April 10, 1911.


80 A. 572

Appeal from Court of Oyer and Terminer, Lackawanna County.

Dominic Colandro was convicted of murder, and he appeals. Reversed and remanded for new trial.

Argued before MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

H. L. Taylor and A. A. Vosburg, for appellant. C. P. O'Malley and Joseph O'Brien, Dist. Atty., for the Commonwealth.

MOSCHZISKER, J. 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 30 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 10 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 5 minutes; that the defendant came out and met Rocco, who again demanded the money; that be 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 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

80 A. 573

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, 32 Atl. 109, 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, 75 N. H. 353, 74 Atl. 585; Dalton v. Dregge, 99 Mich. 250, 58 N. W. 57. 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, 71 Atl. 100, 19 L. R. A. (N. S.) 483, 128 Am. St. Rep. 809; Ortwein v. Com., 76 Pa. 414, 18 Am. Rep. 420; Coyle v. Com., 100 Pa. 573, 45 Am. Rep. 397; Com. v. Wireback, 190 Pa. 138, 42 Atl. 542, 70 Am. St. Rep. 625; Alexander v. Com., 105 Pa. 1; Com. v. Ferruchi, 219 Pa. 155, 68 Atl. 41. 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, 71 Atl. 100, 19 L. R. A. (N. S.) 483, 128 Am. St. Rep. 809. 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, where 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, 66 Atl. 1007, 120 Am. St. Rep. 861.

It was error to tell the jury that self-defense was the only issue, 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 is not bound to accept the version of the commonwealth or the version of the defense. It is their duty to consider all the testimony and to make up their minds therefrom as to the facts. It was possible

80 A. 574

in this case that the jury might have found that there was a certain amount of truth in the evidence produced by the commonwealth and some truth in that produced by the defense, but that neither side was wholly to be...

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81 practice notes
  • Com. v. Kirkland
    • United States
    • United States State Supreme Court of Pennsylvania
    • November 27, 1963
    ...694, supra; Commonwealth v. Palermo, 368 Pa. 28, 81 A.2d 540; Commonwealth v. Cargill, 357 Pa. 510, 55 A.2d 373; Commonwealth v. Colandro, 231 Pa. 343, 80 A. 571; Commonwealth v. Paese, 220 Pa. 371, 69 A. 891, 17 L.R.A.,N.S., Murder is an unlawful killing of another person with malice afore......
  • Com. v. Thomas
    • United States
    • United States State Supreme Court of Pennsylvania
    • November 9, 1978
    ...v. Cooney, 431 Pa. 153, 157, 244 A.2d 651 (1968); Commonwealth v. Flax, 331 Pa. 145, 152-54, 200 A. 632 (1938); Commonwealth v. Colandro, 231 Pa. 343, 350, 80 A. 571 (1911). A reconciliation of the jury's prerogatives and the necessity that the verdict conform to a rational interpretation o......
  • Com. v. McGrogan
    • United States
    • United States State Supreme Court of Pennsylvania
    • November 30, 1972
    ...Commonwealth v. Wucherer, 351 Pa. 305, 41 A.2d 574 (1945); Commonwealth v. Flax, 331 Pa. 145, 200 A. 632 (1938); Commonwealth v. Colandro, 231 Pa. 343, 80 A. 571 (1911); Commonwealth v. Paese, 220 Pa. 371, 69 A. 891 (1908); Commonwealth v. Drum, 58 Pa. 9 (1868); see generally Michael and We......
  • Christian S., In re, No. S030310
    • United States
    • United States State Supreme Court (California)
    • May 16, 1994
    ...v. State Page 38 [872 P.2d 579] (1905)74Ark.444,86S.W.409; State v. Clark (1904) 69 Kan. 576, 77 P. 287; Commonwealth v. Colandro (1911) 231 Pa. 343, 80 A. 571; State v. Swift (1926) 53 N.D. 916, [7 Cal.4th 777] 208 N.W. 388; State v. Foutch (1896) 95 Tenn. 711, 34 S.W. 423; State v. Kidd (......
  • Request a trial to view additional results
81 cases
  • Com. v. Kirkland
    • United States
    • United States State Supreme Court of Pennsylvania
    • November 27, 1963
    ...694, supra; Commonwealth v. Palermo, 368 Pa. 28, 81 A.2d 540; Commonwealth v. Cargill, 357 Pa. 510, 55 A.2d 373; Commonwealth v. Colandro, 231 Pa. 343, 80 A. 571; Commonwealth v. Paese, 220 Pa. 371, 69 A. 891, 17 L.R.A.,N.S., Murder is an unlawful killing of another person with malice afore......
  • Com. v. Thomas
    • United States
    • United States State Supreme Court of Pennsylvania
    • November 9, 1978
    ...v. Cooney, 431 Pa. 153, 157, 244 A.2d 651 (1968); Commonwealth v. Flax, 331 Pa. 145, 152-54, 200 A. 632 (1938); Commonwealth v. Colandro, 231 Pa. 343, 350, 80 A. 571 (1911). A reconciliation of the jury's prerogatives and the necessity that the verdict conform to a rational interpretation o......
  • Com. v. McGrogan
    • United States
    • United States State Supreme Court of Pennsylvania
    • November 30, 1972
    ...Commonwealth v. Wucherer, 351 Pa. 305, 41 A.2d 574 (1945); Commonwealth v. Flax, 331 Pa. 145, 200 A. 632 (1938); Commonwealth v. Colandro, 231 Pa. 343, 80 A. 571 (1911); Commonwealth v. Paese, 220 Pa. 371, 69 A. 891 (1908); Commonwealth v. Drum, 58 Pa. 9 (1868); see generally Michael and We......
  • Christian S., In re, No. S030310
    • United States
    • United States State Supreme Court (California)
    • May 16, 1994
    ...v. State Page 38 [872 P.2d 579] (1905)74Ark.444,86S.W.409; State v. Clark (1904) 69 Kan. 576, 77 P. 287; Commonwealth v. Colandro (1911) 231 Pa. 343, 80 A. 571; State v. Swift (1926) 53 N.D. 916, [7 Cal.4th 777] 208 N.W. 388; State v. Foutch (1896) 95 Tenn. 711, 34 S.W. 423; State v. Kidd (......
  • Request a trial to view additional results

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