Commonwealth v. Marshall

• Decision Date: 06 December 1926
• Docket Number: 267
• Citation: 287 Pa. 512,135 A. 301
• Parties: Commonwealth v. Marshall, Appellant
• Court: Pennsylvania Supreme Court

135 A. 301

287 Pa. 512

Commonwealth v. Marshall, Appellant

No. 267

Supreme Court of Pennsylvania

December 6, 1926

Argued November 22, 1926

Appeal, No. 267, Jan. T., 1926, by defendant, from judgment of O. & T. Phila. Co., Feb. T., 1926, No. 237, on verdict of guilty of murder of the second degree, in case of Commonwealth v. David L. Marshall. Affirmed.

Indictment for murder. Before McDEVITT, J.

The opinion of the Supreme Court states the facts.

Verdict of murder of the second degree, on which the prisoner was sentenced to not less than ten years and not more than twenty years. Defendant appealed.

Errors assigned were (1-42) various rulings and instructions quoting record.

The judgment is affirmed and the record remitted to the court below to the end that the sentence imposed on defendant may be carried out.

Abraham Wernick, of Evans & Wernick, for appellant. -- It was error to charge that defendant is to be acquitted only if death was caused by an enema containing poison by mistake without any plan or action on the part of defendant.

It was error for the court to charge that the burden shifts from the Commonwealth to defendant to show the killing was of a less degree than murder: Com. v. Lee, 226 Pa. 283; Com. v. Ross, 266 Pa. 580; Com. v Berkenbush, 267 Pa. 455; Com. v. Deitrick, 218 Pa. 36.

The court erred in its instructions as to the confessions: Com. v. Mosler, 4 Pa. 264; McClain v. Com., 110 Pa. 263; Braum v. U.S., 168 U.S. 532.

It was error to fail to adequately present issues involved in defendant's testimony: Goersen v. Com., 99 Pa. 388; Com. v. Silcox, 161 Pa. 484; Com. v. Gold-berg, 4 Pa. Superior Ct. 142; Com. v. Croson, 243 Pa. 19.

It was error to admit conversations between deceased and third persons in absence of defendant on day of alleged killing: People v. Carkhuff, 24 Cal. 640; Weyrich v. People, 89 Ill. 90; People v. Irwin, 77 Cal. 494; Montag v. People, 141 Ill. 75.

It was error to refuse to admit medical testimony as to the technical meaning of "History of case" and the effect of an enema.

It was error to refuse requests for withdrawal of a juror: People v. Davis, 52 Mich. 569; Fite v. Bennett, 142 Ga. 660; Granger v. Warrington, 3 Gilman (Ill.) 299; Lange v. Perley, 47 Mich. 352; People v. Roach, 215 N.Y. 592.

The jurisdiction of the court may not be shown by confession of defendant: Com. v. Kaiser, 184 Pa. 493; Com. v. Walker, 3 Pa. Dist. R. 534; Com. v. Ketner, 92 Pa. 372.

Charles F. Kelley, Assistant District Attorney, and Charles Edwin Fox, District Attorney, for appellee. -- Whenever one's state of mind at a given time is material, whether as a principal fact or as an evidentiary fact, contemporaneous declarations are admissible to prove it. Similarly, the declarations of deceased as to a present intention are admissible as part of the res gestae when the intention in declarant's mind is relevant: Com. v. Palma, 268 Pa. 434; State v. Long, 123 A. 350; Sapp v. State, 87 Tex. Cr. 606.

The facts in question assumed must be stated as facts; it is not proper to include in the hypothesis statements that a third person has certain opinions or had made certain statements concerning the matter in controversy: Barber's App., 63 Conn. 393.

It was the jury's duty, after hearing the facts in the case and the opinions of the expert, upon the facts stated hypothetically, where they had no personal knowledge of the facts, to decide whether or not the deceased woman died from compression of the neck: Coyle v. Com., 104 Pa. 117; Wissinger v. Coal Co., 271 Pa. 566; Sloss Sheffield S. & T. Co. v. Steel Co., 156 Ala. 284; Crozier v. Ry., 106 Minn. 77; Yardley v. Cuthbertson, 108 Pa. 395; Dexter v. Hall, 82 U.S. 9.

It is not error to incorporate in a hypothetical question an opinion of another expert witness: Louisville N.A. & C.Ry. v. Falvey, 104 Ind. 409, 3 N.E. 389; Barber's Est., 63 Conn. 393, 27 A. 973; Guiterman v. Ins. Co., 83 N.Y. 358; Parrish v. State, 139 Ala. 16, 36 So. 1012; Crozier v. Minneapolis, etc., Co., 106 Minn. 77, 118 N.W. 356.

Slight inaccuracies, doing no substantial hurt to the prisoner, ought not to turn aside the course of justice: Laros v. Com., 84 Pa. 200, 208; Com. v. Daily (No. 2), 280 Pa. 59.

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

OPINION

MR. CHIEF JUSTICE MOSCHZISKER:

Defendant, David L. Marshall, a chiropractor, who maintained an office in Philadelphia, was charged with the murder of Anna May Dietrich. A jury in the court below found him guilty of murder of the second degree. From a mass of evidence, the following facts, sufficient for the purpose of this opinion, are taken as a brief history of the case.

Dismembered parts of the body of deceased were found in a lonely section of Delaware County, about four miles from Media; two days later, the head, severed from the body, was discovered hidden under a railroad trestle over what is known as Naylor's Run in Upper Darby, several miles away from Media. The following day, January 24, 1926, the Delaware County police authorities took defendant into custody, and on January 25, 1926, turned him over to the police authorities of Philadelphia County.

At the public prosecutor's office in Philadelphia, the prisoner made a confession, to those who had him in charge, in the presence of the district attorney, in which he admitted dismembering the dead body of Miss Dietrich, but denied any responsibility for her death. Defendant said that he had taken deceased into his office, after finding her in a fainting condition in a toilet nearby, and, on attempting to revive her, discovered that she was dead.

Certain of the police officers, together with the district attorney, left Marshall at the conclusion of this confession. Within two hours thereafter, the chief county detective was summoned to the district attorney's office, when, according to the testimony of this officer, defendant stated that the story he had previously told was not true, and proceeded to make a second confession. This, in brief, was to the effect that deceased had come to him for a chiropractic treatment, during which a vertebrae became dislocated and she had immediately died as the result. He said nothing in his second confession, about disposing of the body.

Marshall had barely finished this second story when the district attorney returned; whereupon defendant, being interrogated, disavowed both of his former confessions, to the extent that they explain how the woman had died, and made a third and greatly different statement, which was reduced to writing, signed and sworn to by him. The substance of this was: For a number of years he had been having illicit relations with the deceased, which he determined to end; she came to his office the evening of January 19, 1926, and asked him for money; they quarrelled, and he took her by the throat, -- in his words, "to give her a scare"; she screamed, where-upon he stuffed handkerchiefs into her mouth and continued to choke her, until she was dead.

Marshall claimed, however, that he did not intend to kill and did not realize that he was choking his victim to death; that, being seized with fear of serious misunderstanding, should the body be found in his office, he drained off the blood, dismembered the remains, wrapped the parts in separate bundles, and took them to the places where they were subsequently discovered.

When the case came to trial, defendant repudiated much that he had previously said, and stated that the woman had died in his office because of a disorder from which she was suffering when he found her there. He attempted to establish, by circumstantial evidence, the probability that she had come to her death through the accident of using, instead of common salt, a poisonous compound containing cyanide of potassium, in a solution which she had administered to herself as an enema; that he had found her when she was dying, and, as he had before confessed, subsequently dismembered the body.

Considerable evidence was presented in support of the theory of accidental death, but it is unnecessary to review it here. Suffice to say, this evidence, along with the confession of defendant that he had choked his victim to death, was passed on by the jurors, who, by their verdict, very properly refused to accept the theory that deceased had died from an accidental cause. The unquestioned facts as to the dismemberment and disposal of the body are more consistent with a consciousness of guilt than with the apprehension which defendant claimed to have motivated him in treating the corpse in the inhuman manner shown by the proofs before us, -- no doubt the jury so believed; but, be this as it may, the verdict shows the jury found, as they were warranted in doing, that, when defendant took deceased by the throat, he wickedly intended to do her great bodily harm, even though he may not have intended to kill her; this would be murder of the second degree.

When the defendant's confession that he had choked deceased to death "in the City of Philadelphia on January 19 1926," was offered in evidence by the Commonwealth, his counsel objected to its admission on the ground that the question of the locus of the crime, as establishing jurisdiction, is "part and parcel of the corpus delicti," which must be proved independent of confessions by the accused. The court overruled this objection and granted an exception. The first question for determination, then, is whether the confession was properly admitted. This reduces itself to the inquiry, Was there evidence sufficient, aside from defendant's confessions, to show that a crime had been committed? Here the circumstances of the finding of the body and its condition were clearly consistent with...