Commonwealth v. Kluska

• Decision Date: 09 January 1939
• Docket Number: 320
• Citation: 333 Pa. 65,3 A.2d 398
• Parties: Commonwealth v. Kluska, Appellant
• Court: Pennsylvania Supreme Court

3 A.2d 398

333 Pa. 65

Commonwealth v. Kluska, Appellant

No. 320

Supreme Court of Pennsylvania

January 9, 1939

Argued December 9, 1938.

Appeal, No. 320, Jan. T., 1938, from judgment of O. and T Phila. Co., Dec. Sessions, 1937, No. 820, in case of Commonwealth v. Michael Kluska. Judgment reversed.

Indictment for murder. Before OLIVER, P.J.

The opinion of the Supreme Court states the facts.

Verdict of guilty of murder in the first degree, with penalty fixed at death, and judgment and sentence thereon. Defendant appealed.

Errors assigned, among others, were various rulings on evidence and various excerpts from the charge of the trial judge.

The judgment is reversed and a new trial granted.

Thomas J. Minnick, Jr., and Thomas D. McBride, with them M. J O'Donoghue, 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. STERN, JUSTICE.

A jury found defendant guilty of murder of the first degree and fixed the penalty at death. The court overruled his motion for a new trial and imposed sentence in accordance with the verdict.

Defendant had quarreled with his wife, as a result of which she left him and went to reside with her mother. On a November afternoon in 1937 he met her -- according to his subsequent statement, accidentally -- and urged her to return to him, but she refused. They stood talking together under a railroad bridge. Afterwards she was heard shouting for help and screaming that her husband had thrown acid at her, and was found in great agony, her face dripping with the acid. Taken to a hospital, she died within two hours, her death being caused by the action of the corrosive fluid which had been drawn by inhalation through the nasal passages into her throat.

Defendant did not take the stand nor offer any testimony, but, according to a written statement made to the detectives and introduced in evidence by the Commonwealth, he claimed that he had intended to drink the acid and commit suicide, that when he started to do so his wife tried to wrest from him the can containing it, that some of the contents spilled in his face and blinded him so that he could no longer see her nor know what became of her; he denied that he threw the acid. His defense was, therefore, that her death was accidental. The Commonwealth proved that the liquid was hydrofluoric acid, highly corrosive, and not acid of the kind that defendant regularly used in his work as a painter; also that the position of stains on the abutment of the bridge indicated that the acid had been hurled, not spilled. A police officer testified that he asked defendant at the station house "why he threw the acid on his wife, and he said that his wife set him up, and he said, I would do the same in his place."

The trial revolved principally around two issues of fact: (1) Did defendant throw the acid, or did his wife's death accidentally result from a struggle between them for possession of the can? (2) If the acid was deliberately thrown, was defendant's intent merely to cause bodily harm to his wife or to take her life?

Unconvincing as defendant's explanation of the occurrence must have appeared to the jury, he was nevertheless entitled to have it presented for their consideration according to applicable principles of law. The learned trial judge charged: "If, by a fair preponderance of the evidence, the defendant has established that the killing was an accidental one, when the deceased, Mary Kluska, was struggling with him in the endeavor to prevent him swallowing the acid, the defendant should be acquitted." Although this did not amount to an express statement that the burden was upon defendant to establish by a fair preponderance of the evidence that the death was accidental, it clearly implied that such was the law, and was therefore erroneous. The defense that the killing was accidental is not of the affirmative type which threw upon defendant the burden of proving it, either by preponderance of evidence or otherwise; such a defense, instead of admitting the intentional act charged in the indictment, directly challenges and controverts it: Commonwealth v. Deitrick, 218 Pa. 36, 221 Pa. 7; Commonwealth v. Lockett, 291 Pa. 319, 324. No doubt the error was a mere inadvertence in the course of the charge, but it may have had a gravely prejudicial effect upon the jury, nor was it corrected by the court's further statement that "Where the defense is accidental killing, the burden is still on the Commonwealth to prove guilt beyond a reasonable doubt," since it would have been necessary so to charge even if the defense of accidental killing were one that had to be proved by a preponderance of the evidence.

The second and more important issue in the case was whether defendant had the intent to kill. Undoubtedly there was evidence sufficient to show the existence of such an intent. Ordinarily, perhaps, one would not expect death to result from throwing acid upon the face, but, on the other hand, such an effect might be apprehended. Considering the quantity and quality of the acid which defendant used, the motive which actuated him (resentment because of his wife's refusal to go back to live with him), and all the other circumstances of the case, it would be for a jury to say whether they believed beyond a reasonable doubt that his intent was to kill. However, the selection of such an instrumentality as here employed is so unusual if the intention is to cause death, that the trial judge should not only have made the question of defendant's intent the principal subject of discussion in the charge, but also have been meticulously careful to state accurately -- if at all -- the legal principle concerning the presumption which arises from the use of a deadly weapon upon a vital part of another's body. The court charged: "Our Supreme Court has said where one intentionally uses a deadly weapon upon a vital part of the body of another, there is a legal presumption of an intent to kill, which cannot be rebutted by the assailant's own testimony that he did not so intend, but whether the assailant intended to use the weapon at a vital part is a question of fact, and he may then deny that he intended to so use it or that he intended to take life." It is true that this is a statement taken verbatim from the case of Commonwealth v. Zec, 262 Pa. 251, 257, but it is not in accord with the prevailing authorities. The distinction between a legal and a factual presumption was discussed at length in Watkins v. Prudential Insurance Co., 315 Pa. 497, 500-503; a legal presumption is in effect a rule or conclusion of law, whereas a presumption of fact is but a prima facie inference which can be rebutted by testimony to the contrary. The presumption from the use of a deadly weapon on a vital part of the body arises from the fact that it is common knowledge that such a use is likely to cause death and therefore a jury may infer that the intent of the person using such a weapon in such a manner was to kill. This presumption may be overcome by the assailant himself denying such intent, or by any other appropriate evidence. In Commonwealth v. Drum, 58 Pa. 9, in which the Pennsylvania law of homicide found its most classic expression, it was stated (p. 17) that the presumption arises "in the absence of qualifying facts." In Commonwealth v. Green, 294 Pa. 573, the question was discussed at length, and it was definitely held that the presumption was one not of law but of fact, and arose "in the absence of qualifying circumstances." To the same effect see Commonwealth v. Troup, 302 Pa. 246, 252, 253; Commonwealth v. Robinson, 305 Pa. 302, 310. Moreover, the statement of law as phrased in the charge is confusing in its inconsistency; although saying that the presumption of the intent to kill in such a case cannot be rebutted by the assailant's own testimony that he did not so intend, it adds that he "may then deny . . . that he intended to take life."

It may be well to reiterate, in order to avoid misunderstanding that there was sufficient evidence in the present case to warrant a jury in finding first degree murder, apart from any presumption arising from the use of a deadly weapon. Life may be taken as the result of an intent to take it even though no deadly weapon, in the ordinary sense of that term, be used. In Commonwealth v. Blakeley, 274 Pa. 100, a club was the instrument by which death was inflicted, and the court said (p. 105): "The implement in itself, as an indication of a purpose to effect the result attained, is not separable in any case from its use. A weapon ordinarily may be employed in such a manner that death is improbable. Its nature must be considered with the manner of its application and its effect, and, from the combined circumstances, there may appear an intention to kill . . . it is always for the jury to say, from all the evidence adduced, whether an intention to kill was present in the mind of the defendant." In Commonwealth v. Lisowski, 274 Pa. 222, a wife was killed by being assaulted by her husband with his fists and feet, but a conviction of first-degree murder was sustained. In Commonwealth v. Murray, 2 Ashmead's Rep. 41, a man was beaten to death with a leather strap, and the court said (p. 58): "If we should hold, that a killing by weapons, which, in the popular sense, are not regarded as deadly, is inadequate to induce a conviction of murder of the first degree, we establish a precedent jeopardizing the life of every man in the community, . . . No such rule happily exists; and although the nature of the weapon used may be quite material in...