Commonwealth v. Green

• Decision Date: 16 April 1928
• Docket Number: 149
• Citation: 141 A. 624,292 Pa. 579
• Parties: Commonwealth v. Green, Appellant
• Court: Pennsylvania Supreme Court

141 A. 624

292 Pa. 579

Commonwealth v. Green, Appellant

No. 149

Supreme Court of Pennsylvania

April 16, 1928

Argued March 12, 1928

Appeal, No. 149, Jan. T., 1928, by defendant, from judgment of O. & T. Phila. Co., Aug. T., 1927, No. 60, on verdict of guilty, in case of Commonwealth v. Addis Green. Reversed.

Indictment for murder. Before KUN, J.

The opinion of the Supreme Court states the facts.

Verdict guilty of murder of the second degree, on which sentence was passed. Defendant appealed.

Errors assigned were various rulings and instructions, quoting record.

The judgment is reversed and a new trial granted.

Harry Shapiro, for appellant. -- A dying declaration bearing the mark of the deceased is not admissible in evidence without proof of its execution by either of the the two subscribing witnesses: Truby v. Byers, 6 Pa. 347; North Penn Iron Co. v. Lithord Co., 217 Pa. 538.

In a homicide case it is the duty of the trial judge to charge as to the various degrees of murder and manslaughter: Com v. Marcinko, 242 Pa. 388.

The charge of the court was erroneous as to what is meant by "reasonable doubt": Com. v. Devine, 18 Pa.Super. 431; Com. v. Bober, 59 Pa.Super. 573; Com. v. Rider, 29 Pa.Super. 621; Com. v. Hoskins, 60 Pa.Super. 230; Com. v. Andrews, 234 Pa. 597; Com. v. Colandro, 231 Pa. 343.

Charles C. Gordon, Assistant District Attorney, with him John Monaghan, District Attorney, for appellee.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. CHIEF JUSTICE MOSCHZISKER:

Addis Green was indicted for the murder of Adelphia Pinn, who was found at 618 South Clifton Street, Philadelphia, early in the morning of June 20, 1927, with a bullet wound in her abdomen, which nine days later proved fatal. Defendant appeals from a sentence of not less than six nor more than twelve years in the county prison, following a verdict of second degree murder.

A witness for the Commonwealth testified to having heard a man, whom he identified as the defendant, and a woman, whom he could not identify, talking in rather loud tones outside his room, on the second floor of the Clifton Street house. A short time afterward he heard a shot, and, still later, went downstairs, where deceased lay prostrate, surrounded by police officers. A witness for the accused, who lived next door to the premises where the homicide occurred, also said that, on the evening in question, he heard some "squabbling" in his neighbor's house, followed by the sound of a shot; then he saw a man, not the defendant, leaving No. 618, with a pistol in his hand.

The Commonwealth's case rested chiefly on a dying declaration alleged to have been made by Adelphia Pinn at the hospital where she was taken after the shooting. There, according to the testimony for the prosecution, the wounded woman stated verbally, and subsequently put her mark on a written statement, that defendant had shot her after they had "got to arguing over [another] woman." These statements were testified to by one Anderson, a detective, who arrested defendant. Anderson said that the statements were made in his presence and in that of defendant; also that Green had not at the time denied the assertions of the deceased; further, that the written dying declaration was dictated by her, taken down by the witness, certified by the notary and witnessed by another police officer, one Anthony Gentila, who subscribed his name thereto. The notary public did not take the stand; the police officer in question was called as a witness for the Commonwealth, but was not interrogated by either side concerning the dying declaration.

Defendant testified that, on the evening of the homicide, he and Adelphia Pinn had spent some time together, drinking; that, later in the evening, a man called, who, without apparent provocation, "spoke a nasty word," and hit him; whereupon he, Green, left the house, and a few minutes later heard the report of a revolver and a scream. Green said he then went to his uncle's home, and sent a messenger to his own house for a raincoat; while waiting for it, he was apprehended by detective Anderson, who took him to the hospital to be identified. Defendant further testified that he there said to the injured woman, "Adelphia, tell the truth. Do you mean to tell the man I shot you?" but she did not answer. He admitted that when Anderson asked her whether he, Green, was the man who wounded her, she nodded her head in the affirmative, and that he himself said nothing in reply. Defendant denied that any statement, in the form of a dying declaration, or otherwise, was written while he was at the hospital.

The question of the validity of the admission of the written statement alleged to have been made by the deceased, which was offered in evidence by the Commonwealth, and accepted by the court below as a dying declaration, is raised by appellant; this will be the first point of law considered by us.

Anderson, the officer who arrested defendant, testified for the Commonwealth that he took Green to the hospital where his victim was lodged, and the latter said, in the presence of the prisoner, "That is the man that shot me, Addis Green." The witness testified further, that the wounded woman declared, "Addis Green came to 618 South Clifton Street with another woman, that she had some words about this woman with Addis Green . . . and that is why he shot her." Anderson said also that, after these oral statements and while the defendant was "standing there," a notary public came into the room; that the doctor in charge of deceased told her she would die, and the deceased replied, "I know I am going to die"; that, "then she made a statement in the presence of the defendant," which was written down by the witness and signed by the deceased with her "cross" mark. When this written statement was offered in evidence, counsel for defendant entered the following objection: "I object to the statement until the notary public is here to testify." The statement was made not only in the presence of the notary public, who certified it, but also in that of Anthony Gentila, who subscribed his name as a witness; and now counsel for defendant contends that the statement, being in writing and subscribed to by the notary and witnessed by Gentila, should not have been accepted in evidence until both of these subscribing witnesses had taken the stand and identified the document. While it is proper practice, where a dying declaration is offered in evidence in a murder case, to place upon the stand all those who were present at the time the declaration was made, whether subscribing witnesses or not, yet there is no rule of law which requires this to be done. Failure to follow the course indicated could not be accounted reversible error in a case like the present, where the written declaration coincides with, and does not in any material degree supplement, previous oral statements made by deceased, which were testified to, without objection on the part of defendant, before the offer of the writing; where, also, the record shows that, after the formal offer of the written declaration, but before it was shown to the jury, counsel for defendant, during the cross-examination of the witness for the Commonwealth who produced the writing, had the witness read the document to the jury; and, finally, where the point made by counsel for defendant, at the time of the objections to the offer of the written dying declaration, was not that all those present at the signing of the writing should be called to the stand, or even that the subscribing witnesses had to be called to identify the writing, but was simply that the notary public who officially certified to the document was not in court to testify. Under the circumstances of this case, we are not convinced of reversible error in connection with the acceptance in evidence of the written dying declaration; though, before passing from the subject in hand, we take occasion to note that, since the fact that such a declaration had been made was at least impliedly denied by defendant, it would have been better had the trial judge, when instructing the jury, not assumed the existence of the declaration, as he repeatedly did in the course of his charge.

To take up another matter of complaint, at the beginning of the charge the trial judge said to the jury: "The district attorney is not pressing for first degree murder . . . but for second degree . . . If, after all the evidence has been considered, you are satisfied beyond a reasonable doubt that the defendant . . . shot the deceased, he should under the circumstances be found guilty of second degree murder; there are, in other words, no elements in the case . . . which would reduce the degree of crime. The verdict must be either second degree murder or acquittal." Near the end of the charge, the judge again said: "If you convict him, you must convict of murder in the second degree; because there are no elements in the case which would reduce the grade of the offense. It must either be a conviction in...