Commonwealth v. Logan.

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: LINN, Justice.
• Citation: 361 Pa. 186,63 A.2d 28
• Decision Date: 03 January 1949
• Parties: COMMONWEALTH v. LOGAN.

361 Pa. 186
63 A.2d 28

COMMONWEALTH
v.
LOGAN.

Supreme Court of Pennsylvania.

Jan. 3, 1949.

Appeal No. 3, May term, 1949, from sentence upon verdict in Court of Oyer and Terminer, York County, No. 45, January sessions, 1947; Walter I. Anderson, Judge.

Grant F. Logan was convicted of murder of the first degree, and he appeals.

Judgment affirmed and the record remitted.

Before MAXEY, C. J., and DREW, LINN, STERN, PATTERSON, STEARNE, and JONES, JJ.

Palmer C. Bortner and Ralph F. Fisher, both of York, for appellant.

Harold B. Rudisill, Dist. Atty., of York County and Clarence M. Lawyer, Jr., Asst. Dist. Atty., both of York, for appellee.

LINN, Justice.

The jury found the defendant guilty of murder of the first degree and fixed the penalty at life imprisonment. A motion for a new trial was made; after hearing by the court in banc the motion was dismissed. The defendant was sentenced and has appealed.

63 A.2d 29

The first assignment of error is that ‘the evidence in this case does not support a verdict of murder in the first degree.’ We have examined the record, as required by the Act of February 15, 1870, P.L. 15, § 2, 19 P.S. § 1187, for the purpose of determining whether the ingredients of murder of the first degree appear in the record and we are satisfied that they do appear. Our reasons for the conclusion will appear as we deal with the circumstances of the shooting.

In February, 1947, defendant was 29 years of age. He was employed as a garage mechanic by his brother with whom he made his home after separating from his wife about three weeks before. On February 12, 1947, he bought a revolver; his war experience gave him familiarity with weapons. His wife had left the apartment occupied by them and for a period of between two and three weeks resided in the neighborhood with a widow, Mrs. Hazel Wagner. At about 8:45 on the evening of February 16, 1947, he drove to the home of Mrs. Wagner ‘to try,’ as he said, ‘to get [his wife] to come back.’ When he reached Mrs. Wagner's house he saw his wife and Mrs. Wagner ‘sitting in the front room * * * right inside the window.’ He ‘rang the bell, or rapped on the door’ and Mrs. Wagner answered by opening the door. He told her that he wished to see his wife and testified that Mrs. Wagner said, ‘If you want to see Pauline, go to see her lawyers.’ Among other things, defendant testified; ‘I said, ‘Please leave me see her.’ I begged her, and my nerves, I was just shaking all over, I got pain in the back of my head and I didn't know-I just blacked, that is all, I just couldn't see, and thought I heard people coming towards me, and I didn't know whether they were or not, but there was a lot of racket back of me, and stuff, and I fired a shot to try to get away. Q. Did you direct that shot at any person? A. No, sir. Q. Did you come there with the intention of killing anybody? A. No, sir. Q. Did you intend to kill your wife? A. No, sir. Q. Did you intend to kill Hazel Wagner? A. No, sir. Q. Where did you find that gun? A. I didn't know that gun was in my pocket. Q. When did you first discover that it was in your pocket? A. When I was on the porch of Hazel Wagner's.' The jury rejected that account of what occurred and adopted another account given by witnesses fully supporting its verdict. The evidence would have justified the jury in finding that the shooting occurred at 8:50. Officer Kinneman testified that he arrived at Mrs. Wagner's house at about 8:57 in response to a telephone call and found Mrs. Wagner lying on the porch; he asked her what had happened. ‘A. She said, 'Grant Logan wanted to see his wife and I told him to go see her lawyer. I coaxed him. I begged him to give me that gun. Then he shot me.” That was about seven minutes after the shooting. Mrs. Wagner had been shot in the abdomen. She was taken by ambulance to a hospital in York, Pennsylvania, arriving at 9:10 P.M. She died at 10:10 P.M. About ten minutes after her arrival at the hospital Officer Moul asked her what had happened and received the same reply made to officer Kinneman on the porch at about 8:57 P.M. Miss Selmser, a nurse in the hospital, testified ‘A. Well, when I was getting her undressed in bed, she said that she was dying. Q. What did she say? A. She said, 'I am dying.’ Q. Did she say that more than once? A. Yes, during the time that we were undressing to give her the plasma, and gave her other treatments, she said it. I don't know how many times. Q. Were you present when she died? A. Yes, I was. * * * Q. Would you be able to estimate how soon after she was admitted as a patient it was she made this statement that she was going to die? A. Well, it wasn't any more than ten minutes.' These statements of impending death were made before the deceased spoke to either Officers Moul or Kinneman at the hospital.

Dr. Zarfoss, resident physician in the hospital, testified that he examined Mrs. Wagner, described the bullet wound, and stated that she was suffering marked shock. He was asked, ‘Q. What did she state? A. Well, she believed she was going to die and she repeated that statement several times. We, of course, tried to reassure her, but she still believed that she was going to die.’

63 A.2d 30

During defendant's examination he was asked, ‘Q. You remember clearly pulling out the gun? A. I remember showing it to Mrs. Wagner. Q. Do you remember saying to Mrs. Wagner, 'Maybe this will persuade you to let me in’? A. I didn't say anything like that that I recall. Q. You don't remember that? A. No. sir.'

When asked why he bought the gun he said, ‘A. I bought it for past time. There was a lot of rats in the bottom of the garage. It is a ground floor down there and I bought it to go down there to shoot rats in my spare time.’

After shooting Mrs. Wagner the defendant got into his car and drove some distance away and fired three shots into his chest and shoulder. He said he ‘went numb.’ He threw away the gun and between 1:15 and 1:30 A. M. February 17th he drove to the West Side hospital in York. He told the officers at the hospital where they would find the gun; they found it at the described spot, took it to the hospital where he identified it by number as his gun. The bullet found in the body of the deceased admittedly came from this weapon.

At the conclusion of the commonwealth's case, counsel for defendant moved ‘that the first count in the bill of indictment, to wit, murder, and particularly that part of the first count which involves murder of the first degree, be stricken from the indictment at this time for the reason that the Commonwealth has failed to prove any motive in any killing involved, or any intention whatsoever to kill, which of necessity, therefore, would reduce a degree of murder to that of second degree; and for the additional reason that the presumption of law never raises a killing beyond second degree murder implying malice.’

The learned trial judge dismissed the motion and held that as death had apparently resulted from the use of a gun fired by defendant upon a vital part of the victim's body the degree of murder was a matter of fact to be determined by the jury. Our cases require that decision: Commonwealth v. Wucherer, 1945, 351 Pa. 305, 311, 41 A.2d 574, 577; Commonwealth v. Zec, 1918, 262 Pa. 251, 257, 105 A. 279, 281; Commonwealth v. Drum, 1868, 58 Pa. 9, 17.

The argument for the defendant proceeds on the assumption that ‘defendant's testimony shows that he had no intention of hitting anyone.’ There is no requirement that the jury believe the accused. The sole requirement is that there be sufficient evidence to justify the jury's verdict which imports the finding of a specific intent to kill.

Under the Act of 1870 when the elements of first degree murder appear in the record and there are no trial errors the function of this court ends. See Commonwealth v. Caliendo, 1924, 279 Pa. 293, 297, 123 A. 797, 798; Commonwealth v. Blanchard, 1942, 345 Pa. 289, 295, 26 A.2d 303, 306, reargument denied 1942, 345 Pa. 296, 27 A.2d 48 and...