Commonwealth v. Greevy

• Decision Date: 01 July 1921
• Docket Number: 302
• Citation: 114 A. 511,271 Pa. 95
• Parties: Commonwealth, Appellant, v. Greevy
• Court: Pennsylvania Supreme Court

114 A. 511

271 Pa. 95

Commonwealth, Appellant, v. Greevy

No. 302

Supreme Court of Pennsylvania

July 1, 1921

Argued April 18, 1921

Appeal, No. 302, Jan. T., 1921, by plaintiff, from judgment of Superior Court, Oct. T., 1920, No. 106, reversing judgment of Q.S., Blair Co., Oct. T., 1919, No. 30, on verdict of guilty of manslaughter, in case of Commonwealth v. Walter S Greevy. Reversed.

Appeal from Superior Court. See 75 Pa.Super. 116.

The opinion of the Supreme Court states the facts.

The Superior Court reversed the conviction. The Commonwealth appealed.

Errors assigned are stated in the opinion of the Supreme Court.

The judgment of the Superior Court is reversed, the judgment and sentence of the Court of Quarter Sessions of the Peace of Blair County is reinstated and affirmed, and the record is remitted to the last-named court with directions to take all necessary steps to carry the sentence into effect.

Marion D. Patterson, for appellant. -- The failure of the Commonwealth to convict of higher crime does not preclude her from establishing a less crime, even though arising from the same state of facts.

In Pennsylvania there can be no conviction of involuntary manslaughter upon an indictment for murder: Walters v Com., 44 Pa. 135; Com. v. Gable, 7 S. & R. 423.

It is interesting to note the distinction made by the courts of Pennsylvania between a plea of former jeopardy and a plea of former acquittal. Article I, section 10, of the Constitution provides that no one shall, for the same offense, be twice put in jeopardy of life or limb. This has been interpreted by the courts as being applicable only to capital offenses: McCreary v. Com., 29 Pa. 323. Furthermore, a verdict is not essential to sustain such a plea since jeopardy attaches when the jury is impanelled and sworn: McFadden v. Com., 23 Pa. 12. In offenses less than capital, it is held that the common law plea of former acquittal is a bar to a subsequent prosecution for the same crime: Dinkey v. Com., 17 Pa. 126. Thus, in the principal case, in view of these distinctions, since involuntary manslaughter is not a capital offense in Pennsylvania (Act March 31, 1860, P.L. 382, section 79), the plea of former jeopardy would not have been a bar even though the offenses in both indictments had been the same.

R. A. Henderson, with him J. F. Sullivan, Morgan J. Sheedy and James Gay Gordon, for appellee. -- Where an acquittal on a first prosecution negatives facts essential to a second prosecution, a plea of autrefois acquit must prevail: Com. v. Cuff, 34 Pa. C.C.R. 454.

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

OPINION

MR. JUSTICE SIMPSON:

Defendant was charged with the murder of one Edward Steckroth, of which crime he was tried and acquitted; subsequently he was indicted for involuntary manslaughter, in killing the same person, of which offense he was convicted. On the day of the trial of the last-named indictment, the accused interposed a special plea setting forth facts which he alleged were necessarily involved in his acquittal in the murder case, and were likewise essential to proof of his guilt of involuntary manslaughter. The Commonwealth demurred to this plea, and the demurrer was sustained. Defendant thereupon, on the same day, pleaded a short plea of former acquittal and also one of not guilty. Upon the latter plea issue was joined, but, so far as appears, it was not as to the former. Defendant was found guilty, but moved in arrest of judgment, inter alia, because no verdict was rendered on his short plea of former acquittal. The court of quarter sessions dismissed the motion and imposed sentence; whereupon an appeal was taken to the Superior Court, which reversed the judgment and discharged the defendant without day, (1) because judgment should have been entered in his favor on the demurrer to his special plea, and (2) because there was no verdict upon the outstanding short plea of former acquittal.

Upon application of the Commonwealth, we allowed an appeal from the judgment of the Superior Court; and, in addition to the matters there decided, defendant now claims that his discharge without day deprives us of all right to proceed with the appeal. In answer to this latter point, it is only necessary to call attention to section 9, of the Act of June 24, 1895, P.L. 217, which provides that on appeals from the Superior Court "the whole proceeding shall be brought thereby within the jurisdiction and power of the Supreme Court, who may enter therein such judgment, order or decree as may be just, except that it may not increase (although it may reverse) a sentence upon an indictment." This decides adversely to defendant the question last referred to, and calls upon us to determine what "judgment, order or decree" the Superior Court should have entered; and, if it erred, to enter a "just" judgment here.

Upon the first point decided by the Superior Court, viz, Should judgment have been entered for defendant on the demurrer of the Commonwealth to his special plea of former acquittal? he goes a step beyond that tribunal, and alleges that since, as a legal proposition, the demurrer admitted the facts pleaded, among which was an averment that the verdict in the murder case concluded the issue here, this alone entitled him to judgment on his special plea. There is, however, a vital difference between the rule of law as he thus states it, and as it in fact is; for a demurrer only admits facts properly pleaded, and this necessarily excludes such as are not susceptible of proof, if issue is joined on the plea. The present case is illustrative of the necessity for this rule, for, had the Commonwealth traversed the plea, no evidence would have been admissible except the record in the prior case, and that alone would not sustain the plea. Public policy forbids the examination of jurors, as to the reasons for their verdict, and this was frankly admitted at bar. It follows that defendant's contention upon this point must be overruled.

For the reasons stated in the able and interesting opinion of the Superior Court, it correctly decided that "the evidence in the murder trial is not before us, we can, therefore, consider only the record proper, which consists of the indictment, the pleadings, the issue thereby formed and the verdict"; but, when thus considered, the Superior Court's judgment is directly contrary to our decision in Hilands v. Com., 114 Pa. 372. Though the defendant in the Hilands Case was convicted of murder on the first trial, and we subsequently held the court should have directed his acquittal, yet we significantly said: "If we regard the result of the first trial as the equivalent of an acquittal of the charge of murder, which is stating it in the most favorable form for the plaintiff, it does not help him. It does not follow because the crime charged may not in law amount to felonious homicide, that it may not constitute a misdemeanor, and be punishable as involuntary manslaughter. The failure of the Commonwealth to convict of the higher crime does not preclude her from establishing a lesser crime, even though arising from the same state of facts. The evidence necessary to establish involuntary manslaughter is essentially different from that required to support an indictment for murder." To which may be added that in this, as in all other cases, "the question whether the former acquittal was for the same offense depends upon the record pleaded, and not on the arguments or inferences deduced therefrom": Com. v. Shoener, 216 Pa. 71.

In an endeavor to avoid this conclusion, the Superior Court fell into two plain errors. It treated the acquittal in the murder case as showing defendant was presumptively found to be not guilty of "the fact of any unlawful killing," and added: "If a defendant is to be tried twice for the same fact [which statement begs the question], it is but just that he should have the right to insist that the record upon the trial for the felony must show that he was acquitted upon grounds which rendered him liable to subsequent prosecution for the misdemeanor, when the Commonwealth puts him on trial for that misdemeanor." In the murder case, however, defendant was neither indicted, tried for nor acquitted of merely an "unlawful killing," but of a killing "feloniously, wilfully, and of his malice aforethought," which essentials are not necessary to be proved in an indictment for involuntary manslaughter, as was carefully pointed out in Hilands v. Commonwealth, supra.

The distinction just pointed out is essential to the due administration of the criminal law, as perhaps cannot better be established than by calling attention to the fact that, on his trial for murder, defendant presented the following point, which was affirmed: "If the jury find from the evidence that the defendant did not intend to kill or injure the deceased but under the circumstances did discharge the revolver recklessly or carelessly, and his act was unlawful, the offense could not be higher than involuntary manslaughter, and as that crime is not charged in the indictment, the verdict in this case should be not guilty"; and the further fact that, on his trial in the instant case, he presented the following point which was also affirmed: "If the...