Commonwealth v. Hollinger

• Decision Date: 27 February 1899
• Docket Number: 16
• Citation: 42 A. 548,190 Pa. 155
• Parties: Commonwealth of Pennsylvania v. Joseph Hollinger, Appellant
• Court: Pennsylvania Supreme Court

42 A. 548

190 Pa. 155

Commonwealth of Pennsylvania v. Joseph Hollinger, Appellant

No. 16

Supreme Court of Pennsylvania

February 27, 1899

Argued February 6, 1899

Appeal, No. 16, May T., 1899, by defendant, from judgment of O. & T. Dauphin Co., Sept. T., 1898, No. 258, on guilty of murder of the first degree. Affirmed.

Indictment for murder.

At the trial it appeared that on August 26, 1898, the prisoner killed his wife. The manner of the killing is fully described by the trial judge in his opinion refusing a new trial.

The court charged in part as follows:

Counsel suggest, or at least did in their opening -- counsel for the prisoner -- that they intended to give evidence on the question of the mental condition of the defendant with a view of reducing the grade of the offense. It is difficult for me to see how it could properly have that effect. If at the time this act was committed the prisoner was insane, if he was in the condition of mind that would excuse the man because he was not conscious of the nature of the act, it would then be your duty to acquit him on that ground. It would be your duty to say that you did acquit him on that ground, because, if his mind was in the condition that he was not responsible for what he was doing, he would not be responsible for manslaughter any more than he would be for murder. The important thing for you, however, gentlemen, is to determine whether this prisoner at the time he committed this offense did it wilfully, deliberately and premeditately. If he did he was guilty of murder in the first degree, unless you find that the state of his mind was such that at the time he was not conscious of the nature of the act, and therefore irresponsible.

As we have already attempted to explain to you, gentlemen, if this prisoner was of unsound mind to such an extent that he was not conscious of the nature of the act he was committing then you ought to acquit him on the ground of insanity.

Verdict of guilty of murder of the first degree.

On a motion for a new trial SIMONTON, P.J., filed the following opinion:

There was no substantial controversy as to the facts on the trial of the case. The prisoner killed his wife by knocking her down with his fist from a bench on which she was standing picking grapes, placed his knee on her breast as she lay, took a clasp knife out of his pocket, which, according to the testimony of one of the witnesses, he had some difficulty in opening, and with it cut her throat, severing the jugular vein and causing her death in a few minutes.

One of the reasons suggested why a new trial should be granted is that the court did not fully instruct the jury as to their rights to find a verdict of murder of the second degree. The court was not asked at any stage of the case either orally or in writing to give such instructions: Commonwealth v. Zappe, 153 Pa. 501; Commonwealth v. Nevling, 98 Pa. 322; at foot of page 337; Kehoe v. Traction Company, 187 Pa. 486. The testimony, including that of the prisoner himself, showed that his crime was a brutal, savage murder, of the kind that induced our predecessors in the administration of the criminal law to charge in the indictment that the accused was "instigated by the devil," and naturally it did not occur to either the counsel for the prisoner or the court that it was anything else than murder of the first degree, unless the prisoner was insane when the act was committed. The jury were, therefore, not in terms instructed that they might find the prisoner guilty of murder of the second degree; they were instructed, with reference to the facts of this case, what must be found to constitute murder at common law; that there are two degrees of murder; that there must be a wilful, deliberate and premeditated killing to render the prisoner guilty of murder of the first degree; and that they were to determine from the evidence whether it makes out a case of murder of the first degree or not; that all killing not murder of the first degree, if murder at all, is murder of the second degree, and that before they could convict of murder of the first degree they must be satisfied that the killing was wilful, deliberate and premeditated, with an explanation of the meaning of these terms.

The distinction between what the court may and may not say to the jury as to the degree of murder is stated in McMeen v. Com., 114 Pa. 300, where Mr. Justice PAXSON, at page 305, delivering the opinion of the Court, said: "The learned judge told the jury that murder by poison was murder of the first degree. In doing so he was merely repeating the act of assembly defining the offense. It is true, the jury have the power even in the case of murder by poison to convict of the lesser grade of crime. So they have the power in such a case to acquit altogether in the face of the clearest evidence. In either case it would be a disregard of their duty and of their oaths. If the learned judge had said to the jury, as in Rhodes v. Commonwealth, 48 Pa. 396, that they must convict of murder of the first degree or acquit altogether it would have been error. But he did not. He plainly told the jury what the law was, and then in the last paragraph of this charge said to them: If you find him guilty of murder you must also say in what degree. The charge of the learned judge upon this point was not so strong as in the latter case of Shaffner v. The Com., 72 Pa. 60; where the court instructed the jury in a case of murder by poison that 'if you are convinced that he is guilty of the crime it is murder in the first degree as declared by the act of assembly, and it is your duty to say so without regard to the consequences to the prisoner.' This ruling was affirmed in this Court in a careful opinion by Mr. Justice AGNEW, in which the previous case of Rhodes v. Com., and Lane v. Com., 59 Pa. 371, were considered. The distinction is between a proper statement of the law and a binding instruction. The latter is held to be error, though the case be never so clear." We think the instructions given to the jury in the case before us were within this distinction.

Another reason suggested why a new trial should be granted is that the court instructed the jury that it was difficult to see how the mental condition of the prisoner could reduce the grade of the offense; and if they found him not of sound mind, so as to understand the nature of the act he was committing, and that it was wrong he should be acquitted.

This instruction was given with reference to the appeal of counsel to the jury to find the prisoner guilty of manslaughter only, in view of the testimony on the question of his sanity.

We have not been referred to, nor have we been able to find, any case in Pennsylvania that decides that there is a grade of insanity that, while not sufficient to lead to the acquittal of a prisoner charged with murder, is sufficient to lower the degree of the crime. There are cases deciding that there is such a grade of intoxication. And in Jones v. Com., 75 Pa. 403, language was used by AGNEW, C.J., delivering the...