Commonwealth v. Drum

• Court: United States State Supreme Court of Pennsylvania
• Citation: 58 Pa. 9
• Parties: Commonwealth versus Drum. 1
• Decision Date: 01 January 1865

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58 Pa. 9 Commonwealth versus Drum.¹ Supreme Court of Pennsylvania.

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WILLIAM DRUM was charged in the Court of Quarter Sessions of Westmoreland county for the murder of David Mohigan. A true bill having been found by the grand jury of that court, it was certified into the Court of Oyer and Terminer of the same county.

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Messrs. Todd, Given and Latta, conducted the prosecution.

Messrs. Keenan, Hunter, Cowan and Foster, conducted the defence.

Justice AGNEW charged the jury as follows: —

Gentlemen: — The solemnity of the form in which the prisoner has been arraigned, and through which you have been set apart to become his triers, is well calculated to impress your minds with the high responsibility of the duty you have taken upon you. It should remind you that you are not to be blind to the interests of society in the pity you may feel for his youth; nor to forget the justice due to him in the horror you may feel for the crime. Following the pathway of the evidence, you should turn neither to the right nor the left, except as its light may illumine, guide and direct you. Have you any impressions unfavorable to capital punishment? You must discard them, knowing and feeling the conviction that not you, but the law inflicts it. You do not pronounce the sentence which condemns to death; that belongs to the court; but you simply say whether he has committed the deed which the indictment charges against him; you only find a true verdict.

You must not be affrighted from duty by the consequences of your finding. The weak and timid mind, alarmed at the picture which eloquence invokes, shrinks and often fears to follow whither the evidence leads. But the consequences are not yours — they follow the crime and not the finding. You should then dismiss the fear of consequences from your minds, except so far as their dread import should make you cautious, deliberate and just in weighing the evidence, and clear and satisfied in the judgment you form upon it. If, through fear, pity, indignation or passion,

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you suffer your minds to be drawn away from a true and just verdict, you do err. Remember this, as a kind and faithful warning of the minister of justice, to preserve you wholly blameless in the high office you are called to perform.

The law of our state has made wilful, deliberate and premeditated murder a capital crime. Sworn, as we are, to obey that law, we must know no other guide, remembering that the powers that be are ordained of God, and that we needs must be subject to them, not only for the wrath they may invoke, but for our own conscience' sake. Then hold the balance firmly, that justice may be done both to the Commonwealth and to the prisoner; such words as rich and poor, high and low, should have no place in your thoughts. You would not willingly err, but you must endeavor not to err. Search your consciences for the source of every judgment. Let your convictions, carefully and deliberately formed, be such that you may follow them to their fountain in the hidden depths of the heart where the Unseen Eye alone can penetrate, and there, in that dread presence, challenge their true source.

A life has been taken. The unfortunate David Mohigan has fallen into an untimely grave; struck down by the hand of violence; and it is for you to determine whose was that hand, and what its guilt. The prisoner is in the morning of life; as yet so fresh and fair. As you sat and gazed into his youthful face, you have thought, no doubt, most anxiously thought, is his that hand? Can he, indeed, be a murderer? This, gentlemen, is the solemn question you must determine upon the law and the evidence.

At the common law murder is described to be, when a person of sound memory and discretion unlawfully kills any reasonable creature in being and under the peace of the Commonwealth, with malice aforethought, expressed or implied. The distinguishing criterion of murder is malice aforethought. But it is not malice in its ordinary understanding alone, a particular ill-will, a spite or a grudge. Malice is a legal term, implying much more. It comprehends not only a particular ill-will, but every case where there is wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured. Murder, therefore, at common law embraces cases where no intent to kill existed, but where the state or frame of mind termed malice, in its legal sense, prevailed.

In Pennsylvania, the legislature, considering that there is a manifest difference in the degree of guilt, where a deliberate intention to kill exists, and where none appears, distinguished murder into two grades — murder of the first and murder of the second degree; and provided that the jury before whom any person indicted for murder should be tried, shall, if they find him guilty

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thereof, ascertain in their verdict whether it be murder of the first or murder of the second degree. By the Act of 31st March 1860, "all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree."

In this case we have to deal only with that kind of murder in the first degree described as "wilful, deliberate, and premeditated." Many cases have been decided under this clause, in all of which it has been held that the intention to kill is the essence of the offence. Therefore, if an intention to kill exists, it is wilful; if this intention be accompanied by such circumstances as evidence a mind fully conscious of its own purpose and design, it is deliberate; and if sufficient time be afforded to enable the mind fully to frame the design to kill, and to select the instrument, or to frame the plan to carry this design into execution, it is premeditated. The law fixes upon no length of time as necessary to form the intention to kill, but leaves the existence of a fully formed intent as a fact to be determined by the jury, from all the facts and circumstances in the evidence.

A learned judge (Judge Rush, in Commonwealth v. Richard Smith) has said: "It is equally true both in fact and from experience, that no time is too short for a wicked man to frame in his mind his scheme of murder, and to contrive the means of accomplishing it." But this expression must be qualified, lest it mislead. It is true that such is the swiftness of human thought, that no time is so short in which a wicked man may not form a design to kill, and frame the means of executing his purpose; yet this suddenness is opposed to premeditation, and a jury must be well convinced upon the evidence that there was time to deliberate and premeditate. The law regards, and the jury must find, the actual intent; that is to say, the fully formed purpose to kill, with so much time for deliberation and premeditation, as to convince them that this purpose is not the immediate offspring of rashness and impetuous temper, and that the mind has become fully conscious of its own design. If there be time to frame in the mind, fully and consciously, the intention to kill, and to select the weapon or means of death, and to think and know beforehand, though the time be short, the use to be made of it, there is time to deliberate and to premeditate.

The proof of the intention to kill, and of the disposition of mind constituting murder in the first degree, under the Act of Assembly, lies on the Commonwealth. But this proof need not be express or positive. It may be inferred from the circumstances.

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If, from all the facts attending the killing, the jury can fully, reasonably, and satisfactorily infer the existence of the intention to kill, and the malice of heart with which it was done, they will be warranted in so doing. He who uses upon the body of another, at some vital part, with a manifest intention to use it upon him, a deadly weapon, as an axe, a gun, a knife or a pistol, must, in the absence of qualifying facts, be presumed to know that his blow is likely to kill; and, knowing this, must be presumed to intend the death which is the probable and ordinary consequence of such an act. He who so uses a deadly weapon without a sufficient cause of provocation, must be presumed to do it wickedly, or from a bad heart. Therefore, he who takes the life of another with a deadly weapon, and with a manifest design thus to use it upon him, with sufficient time to deliberate, and fully to form the conscious purpose of killing, and without any sufficient reason or cause of extenuation, is guilty of...