Commonwealth v. Kelly

• Decision Date: 27 January 1939
• Docket Number: 322
• Citation: 4 A.2d 805,333 Pa. 280
• Parties: Commonwealth v. Kelly, Appellant
• Court: Pennsylvania Supreme Court

4 A.2d 805

333 Pa. 280

Commonwealth v. Kelly, Appellant

No. 322

Supreme Court of Pennsylvania

January 27, 1939

Argued November 29, 1938.

Appeal, No. 322, Jan. T., 1938, from judgment and sentence of O. & T. Phila. Co., April Sessions, 1938, Nos. 1076 and 1077 in case of Commonwealth v. William Kelly. Judgment reversed.

Indictment for murder. Before McDEVITT, P.J.

The opinion of the Supreme Court states the facts.

Verdict of first degree murder, with penalty of death, and judgment and sentence thereon. Defendant appealed.

Errors assigned, among others, were various excerpts from charge of trial judge.

The judgment is reversed and a new trial ordered.

Louis Marcus, with him Charles J. Roney, for appellant.

Vincent A. Carroll, Assistant District Attorney, with him Charles F Kelley, District Attorney, for appellee.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES JJ.

OPINION

MR. MAXEY, JUSTICE.

This is an appeal from the sentence of death imposed upon defendant, William Kelly, after he was convicted of murder in the first degree upon an indictment charging him with the malicious killing of Police Officer Henry Berry.

At about 1 p.m., on March 17, 1938, defendant entered the jewelry store of Max Perlstein at 1018 Girard Avenue, Philadelphia. He claimed that his intention was to sell two revolvers to Perlstein but the latter testified as follows: "He [defendant] came in the store. I walked around the counter, and I asked him what he wished, and he pointed a blue automatic revolver at me and told me to be quiet and give him my money. . . . I said to him, 'All right,' and I walked over to the safe. . . . As I was standing right near my safe I looked back, and I seen that he didn't move, and he was . . . about 15 feet away from me, and pointing the gun towards the side. . . . So I quick jumped into the flower store, and . . . ran on down the street and hollered, 'Hold up.'" Defendant also fled.

A young colored girl, Mary Johnson, who had heard Perlstein's cries of "Hold up," followed defendant until they came where Police Officer Berry was directing traffic; and she then said to the latter: "Arrest that man. He held up the jewelry store on Girard Avenue." Officer Berry thereupon chased defendant a short distance, took him into custody, searched him, found one of the guns, and then took him to a truck. As the patrolman was opening the truck door, defendant pulled another gun (together with a handkerchief) out of the left-hand pocket of his overcoat and fatally shot the officer through the chest and spine. Defendant contended that the shooting was accidental. Another eyewitness to the shooting testified that the "colored man pulled out a gun from his overcoat pocket, from the left side, and he changed it over to the right hand, and when the officer was facing the driver and opening the door the man turned around like this and shot the officer in the chest."

Detectives later took the defendant into custody, and when they were walking along the street defendant threw up his hands, knocked one of the officers away and tried to escape. They shot him five times, and then took him to the hospital where on the next day they secured a four-page statement from him.

Defendant testified at the trial that he was out of employment and went to Perlstein's jewelry store "with the intention of selling the two revolvers." He said: "I placed the automatic on the counter. This man [Perlstein] behind the counter, when he saw it, he jumps back, He said, 'What is this?' I said, 'Wait a minute.' He kept on going back. . . . I said, 'Wait a minute, so I can explain.' . . . He kept running back . . . until he got to the place where he started yelling unmercifully. He kept yelling and ran to the other side. . . . I ran out of the place. . . . When I got down to the street the officer came up behind me and he stuck his revolver in my back and said, 'Stop.' So, I turned around and said, 'What have I done, Officer?' He said, 'You know what you done.' . . . He reached his hand in my left-hand coat pocket and took this revolver out. . . . He got me out in the street and was holding me there for the truck. I was all wet around there from perspiring. . . . I reached my hand in my pocket to get a handkerchief . . . and he grabbed my hand, 'What are you doing there,' like that, and bringing it up, the thing went off, to my surprise. . . . He collapsed and I went down. . . . I wasn't making any move or running from them or anything like that. After they got me out here and stopped this car . . . and as I went in, my foot slipped, and I stumbled, and when I made the stumble, the shooting took place. They hit me. . . . When I came to . . . I was in the hospital, . . . the detectives questioned me. I couldn't hardly talk on account of my throat. They kept on asking me and I was trying to give them a statement the best I could." He added: "What I was signing to, I didn't know. . . . There was nothing to do, but sign." The Magistrate testified that he read the statement to defendant and the latter admitted it was his. In the statement the defendant said: "The automatic was pulled out of my pocket [by the officer]; he kept twisting my wrist trying to get the gun and I tried to get the gun away. I had my finger on the trigger and the next thing I knew the gun went off."

The jury returned a verdict of first degree murder with capital punishment. Then followed a motion for a new trial, its denial, the imposition of the death penalty, and this appeal.

Appellant complains of many alleged trial errors and emphasis is laid on that part of the court's charge reading as follows: "No accidental killing can possibly follow the perpetration of, or attempt to perpetrate a robbery, or the acts connected with it." This statement is too broad. The Act of March 31, 1860, P.L. 382, sec. 74, as amended by the Act of May 22, 1923, P.L. 306, provides that "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 attempting to perpetrate any arson, rape, robbery, burglary or kidnapping, shall be deemed murder of the first degree." A killing of a human being in order to be murder must be done maliciously. "Malice aforethought is an element of murder in either degree and distinguishes it from manslaughter": Com. v. Gibson, 275 Pa. 338, 119 A. 403. There is some divergence of opinion in other jurisdictions as to what acts of a person engaged in the perpetration or attempted perpetration of any of the above felonies will make the felon guilty of murder when the death of another results from such acts. POLLOCK, C.B., in Regina v. Lee, 4 F. & F. 63, 176 Eng. Reports 468, makes this statement: "There is an ancient principle of law that if a man in the committal of a felony uses violence to the person, which causes death, even although he did not intend it, he is guilty of murder." In Wharton's Criminal Law (12th ed.), Vol. 1, page 747, sec. 511, appears the following: "It has sometimes been said that a homicide in the perpetration of, or attempt to perpetrate, any arson, rape, robbery, or burglary, is, under the Pennsylvania and cognate statutes, murder in the first degree. But it must be remembered that the statutes under criticism do not say that 'homicide,' when so committed, . . . at common law can be murder either in the first or second degree; and we have first to inquire, in determining the grade of any particular homicide under the statutes, whether it is murder at common law." ^[1]

In 13 R.C.L., p. 845, sec. 148, it is declared: "It may be stated generally that a homicide is committed in the perpetration of another crime, when the accused, intending to commit some crime other than the homicide, is engaged in the performance of any one of the acts which such intent requires for its full execution, and, while so engaged, and within the res gestae of the intended crime, and in consequence thereof the killing results. It must appear that there was such actual legal relation between the killing and the crime committed or attempted, that the killing can be said to have occurred as a part of the perpetration of the crime, or in furtherance of an attempt or purpose to commit it. In the usual terse legal phraseology, death must have been the probable consequence of the unlawful act." Wharton's Homicide (3d ed.), page 184, sec. 126, declares: " To render a killing without malice murder in the first degree under statutes making it murder in the first degree to kill in the perpetration of a felony, or of specified felonies, it must have been done in pursuance of the unlawful act, and not collateral to it. The killing must have had an intimate relation and close connection with the felony, and not be separate, distinct, and independent from...