Commonwealth v. Greevy

• Decision Date: 11 October 1920
• Docket Number: 106-1920
• Citation: 75 Pa.Super. 116
• Parties: Commonwealth v. Greevy, Appellant
• Court: Pennsylvania Superior Court

75 Pa.Super. 116

Commonwealth v. Greevy, Appellant

No. 106-1920

Superior Court of Pennsylvania

October 11, 1920

Argued April 19, 1920 [Syllabus Matter]

Appeal by defendant, from judgment and sentence by Q. S. of Blair County-1919, No. 30, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Walter S. Greevy.

Indictment for involuntary manslaughter. Before Baldrige, P. J.

The facts are stated in the opinion of the Superior Court.

Verdict of guilty on which judgment of sentence was passed. Defendant appealed.

At the trial the defendant presented, inter alia, the following points:

" The evidence of the Commonwealth in this case, being identically the same as that offered by it in the indictment charging this defendant with murder for the killing of said Edward Steckroth, to No. 10, June Sessions, 1919, Oyer and Terminer of Blair County, of which charge defendant was acquitted by the jury, there can be no conviction under this indictment.

" The answer:

" This point is refused."

" The jury must take into consideration in the determination of the present case the evidence offered in the case of Commonwealth v. Walter S. Greevy, No. 10, June Sessions, 1919, Oyer and Terminer of Blair County, for the purpose of ascertaining whether the evidence offered by the Commonwealth in that case, is the same as is offered in the present case.

" The answer:

" This point is refused."

" The Commonwealth, having offered in this case, the identical evidence against the defendant as was offered in the case of Commonwealth v. Walter S. Greevy, No. 10, June Sessions, 1919, Oyer and Terminer of Blair County, wherein the defendant was charged with murder, and the defendant having offered as a defense in said case, a justification of the killing, there having been an acquittal of 'Not guilty' in said case, said acquittal is a bar to this prosecution and the verdict of the jury must be 'Not guilty.'

" The answer:

" This point is refused."

" The defendant, having been indicted and tried under Indictment No. 10, June Sessions, 1919, Oyer and Terminer of Blair County, upon the identical evidence offered by the Commonwealth in this case, in which former prosecution, the defendant offered the defense of justification and there being an acquittal, there can be no conviction in this case.

" The answer:

" This point is refused."

Errors assigned, among others, were refusal of defendant's points as above, quoting them, refusal of defendant's motion in arrest of judgment and sustaining the demurrer of the Commonwealth to defendant's special plea of former jeopardy and former acquittal.

James Gay Gordon and R. A. Henderson, and with them Morgan J Sheedy and J. F. Sullivan, for appellant, cited: Com. v Griffin, 21 Pick. 523; Dinkey v. Com., 17 Pa. 126; State v. Johnson, 10 N.J.L. 185; Bishop's New Criminal Law, vol. 1, secs. 788, 789, 804; Com. v. Gable, 7 S. & R. 422; Com. v. Skeels, 2 D.R. 761; Hunter v. Com., 79 Pa. 503; Staeger v. Com., 103 Pa. 472; Com. v. Arner, 149 Pa. 35; Com. v. Gouger, 21 Pa.Super. 232; Com. v. Shutte, 130 Pa. 272; Com. v. Demuth et al., 12 S. & R. 389; Solliday v. Com., 28 Pa. 13; Thompson v. United States, 155 U.S. 271.

Marion D. Patterson, District Attorney, for appellee, cited: Hilands v. Com., 111 Pa. 1, and 114 Pa. 372; Com. v. Ramunno, 219 Pa. 204; Com. v. Exler, 61 Pa.Super. 425; Com. v. Trimmer, 84 Pa. 65; Com. v. Shoener, 216 Pa. 71; Walters et al. v. Com., 44 Pa. 135.

Before Porter, Henderson, Head, Trexler, Keller and Linn, JJ.

OPINION

PORTER, J.

The trial of the defendant in the court below, upon an indictment charging involuntary manslaughter, resulted in a conviction. When called upon to plead to the indictment he filed a special plea in bar setting forth that he had been indicted in the Court of Oyer and Terminer of Blair County upon a charge of murder for the same killing, to which indictment he had entered the plea of not guilty, upon which plea the Commonwealth joined issue; that upon the trial of that issue the jury rendered a verdict of not guilty; that the offense charged in the said former indictment was the same as that charged in the present indictment and that the defendant was the same person who had been thus tried and acquitted. This is a correct statement of the matters of record set forth in the plea and a brief summary of the matters of fact which were well pleaded, although the plea made other statements of fact which it will be necessary to consider. The plea concluded with an averment that the offense being the same mentioned in the former indictment and no other, that his acquittal upon the issue there tried was a bar to any further prosecution on the facts charged in the present indictment, made profert of the record, and prayed judgment that he be discharged from the present indictment.

The Commonwealth demurred to the plea and the prisoner joined issue on the demurrer. The court entered judgment in favor of the Commonwealth upon the demurrer, to which the defendant excepted. The defendant then entered the pleas of autrefois acquit, in the form authorized by the Criminal Procedure Act of March 31, 1860, and " not guilty." The Commonwealth joined issue upon these pleas, and the issues thus raised were submitted to the same jury. The jury rendered a verdict of guilty, but did not say anything on the question of former acquittal, the defendant moved in arrest of judgment, which motion the court overruled and sentenced the prisoner.

The first assignment of error refers to the action of the court in entering judgment in favor of the Commonwealth upon the demurrer to the special plea in bar. The appellant did not in presenting his special plea in bar, avail himself of the right to file the short plea, " that he had been lawfully acquitted of the offense charged in the indictment," conferred by the Act of March 31, 1860, sec. 30, P. L. 437. The statute was intended to relieve a prisoner from embarrassment, it conferred a privilege, but it did not prohibit the filing of a special plea, in the forms used at common law. The appellant having elected to resort to the common law forms of pleading, the sufficiency of his plea must be determined upon common law principles. " The plea of autrefois acquit consists of two kinds of matter. 1. Matter of record, namely, the former indictment and acquittal, and before what justices, and in what manner, viz: by verdict or otherwise; and 2. Matter of fact, namely, that the prisoner is the same person that was acquitted, that the fact is the same of which he was acquitted, and whereof he is now indicted" : Hale's Pleas of the Crown, vol. 2, page 241. This was all that was required in such a plea at common law, and all of this the plea with which we are now dealing sufficiently set forth. But at common law there were no degrees or grades of manslaughter and a general verdict of not guilty upon an indictment charging murder was a bar to any subsequent indictment for manslaughter and further at common law the jury were required to render a special verdict in case the killing was per infortunium or se defendendo: 2 Hale's Pleas of the Crown 302; Hawkins Pleas of the Crown, book 2, ch. 47, sec. 4; Foster's Crown Cases 289. Since our statutes have made involuntary manslaughter a misdemeanor, instead of a felony as at common law, and as it has not been the practice to require juries to render a special verdict in cases of homicide se defendendo or per infortunium, we can perceive no reason, founded upon principle, for denying to a prisoner the right to aver, in such a plea, that he had at the former trial admitted the fact of the killing and had produced evidence establishing that it was done in the necessary defense of his own person or by misadventure which involved no fault upon his part; that such was the only issue submitted to the jury, and upon it he was acquitted. A demurrer by the Commonwealth to a plea containing such an averment would be held to admit the fact, and it may be that thereupon the prisoner would be entitled to judgment in his favor, but that point it is not now necessary to decide. The appellant did in his plea (in addition to the averments above set forth), make the following averment of fact, viz: " That the record and evidence in said case will show that the said Walter S. Greevy interposed the plea of 'self-defense'; that he was a police officer of the State of Pennsylvania; and also that the shooting was justified in the apprehension of an escaping felon, and accidental." This was not well pleaded. " Self-defense" is not and never was a proper plea to an indictment for murder; the defendant must plead not guilty and under the general issue produce evidence that the killing was necessary in his own defense and, further, the record relied upon shows that no such plea was entered, and the record must stand. It is probable that the defendant did not mean by this expression that he had formally pleaded " self-defense," but meant to say that he had presented evidence to sustain that defense and urged it upon the consideration of the jury, and in that light it probably ought to be considered. Accepting the allegation in this light, the remaining allegations of fact; " that he was a police officer of the State of Pennsylvania and also that the shooting was justified in the apprehension of an escaping felon" might have been entitled to some weight, if the pleader had not added the words " and accidental." We have, then, in this part of the plea an averment that the killing was in self-defense, that it was justified in the arrest of an escaping felon, and that it was accidental. The allegations that the killing was in self-defense and accidental are repugnant; homicide per infortunium ...