Commonwealth v. Miller

• Decision Date: 15 January 1934
• Docket Number: 364
• Citation: 313 Pa. 567,170 A. 128
• Parties: Commonwealth v. Miller, Appellant
• Court: Pennsylvania Supreme Court

170 A. 128

313 Pa. 567

Commonwealth v. Miller, Appellant

No. 364

Supreme Court of Pennsylvania

January 15, 1934

Argued November 28, 1933

Appeal, No. 364, Jan. T., 1933, by defendant, from judgment and sentence of O. & T. Philadelphia Co., April T., 1933, No 384, in case of Commonwealth v. John Andrew Miller. Judgment reversed and venire facias de novo awarded.

Indictment for murder. Before McDEVITT, P.J.

The opinion of the Supreme Court states the facts.

Verdict of guilty, sentence of death. Defendant appealed.

Errors assigned, inter alia, were portions of charge, quoting record.

The second, sixth, twenty-first and twenty-second assignments of error are sustained, the judgment is reversed, and a venire facias de novo is awarded.

Maurice J. Teitelbaum and Allen C. Thomas, Jr., for appellant.

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

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE DREW:

The defendant, John Andrew Miller, was indicted and tried for the murder of William Shapiro. The jury found him guilty of murder of the first degree, and fixed the penalty at death. From the judgment and sentence entered on the verdict, Miller appeals. There are 89 assignments of error, all but six of which charge inadequacy, inaccuracy and unfairness in the charge of the learned trial judge.

The only assignments of error which need be considered are those which allege that the trial court did not adequately instruct the jury on the law of manslaughter and which complain of the express statement of the learned trial judge in the charge that, although he could not take away from the jury the right to return a verdict of manslaughter, on the facts of the case defendant was guilty of murder or nothing, and a finding of manslaughter would not be supported by the evidence. Defendant's counsel earnestly contend that a verdict of manslaughter could have been reached by the jury on any one of eight possible theories, all of which, they claim, had testimony to support them. Of these eight hypotheses, we need consider only the one most strongly pressed -- that the evidence was sufficient to support a finding that the killing was done by defendant under the influence of a real, even though unreasonable, fear that his life was in danger. Nothing was said in the charge to the effect that a killing while under the influence of fear for one's life might be manslaughter, and the points offered by the defendant on the subject of manslaughter were refused. While it is well settled that a trial judge is not required to charge the jury on manslaughter where there is nothing in the testimony to reduce the grade of the crime below murder (Com. v. Morrison, 266 Pa. 223; Com. v. Lessner, 274 Pa. 108; Com. v. Spardute, 278 Pa. 37; Com. v. Meleskie, 278 Pa. 383; Com. v. Hadok, 313 Pa. 110), it is only in very clear cases, where there is no room for doubt, that this can properly be done: Com. v. Sutton, 205 Pa. 605; Com. v. Curcio, 216 Pa. 380. It is equally well settled that a killing committed under an apprehension that one's life is in danger is, if the apprehension is reasonable, excusable as done in self-defense (Com. v. Colandro, 231 Pa. 343; Com. v. Balanzo, 261 Pa. 507; Com. v. Russogulo, 263 Pa. 93); if the apprehension exists, but is not reasonable, it is manslaughter only: Com. v. Drum, 58 Pa. 9; Com. v. Colandro, supra; see Com. v. Curcio, supra; Com. v. Principatti, 260 Pa. 587. Hence, if there was sufficient evidence for the jury to base a finding of manslaughter on this ground, the defendant was entitled to have the jury so instructed: Com. v. Curcio, supra; Com. v. Colandro, supra.

As to the facts leading up to the night of the killing there is no conflict in the testimony. In December, 1932, a bank in West Philadelphia was robbed by six bandits, who obtained a large sum of money and succeeded in making their escape. Shapiro, the deceased, knew the men who robbed the bank, and had expected to take part in the robbery, but had been left out of their plans and given no share of the proceeds. As a result, he was angry, and determined to kidnap for ransom one of the gang which had robbed the bank. For the promise of a share of the ransom money he secured the assistance of the defendant, Miller, and of a girl named Helen Taylor. In pursuance of a plan agreed upon by them, the Taylor girl, under an assumed name, rented an apartment. The next evening Shapiro, Miller, and the girl went to a street corner which was frequented by members of the gang, and kidnapped Bennie Berliner, one of the bank robbers. They took him to the apartment, where they securely bound him with ropes. Berliner testified that Shapiro sent Miller and the girl out of the room, and them said to him, "You were in a hold-up, and I know it, and I'm going to send a note demanding $10,000 for your return. If your friends think anything of you, they'll pay; if not you're going to get killed. I don't care what happens. I made up my mind, and I am going to go through with it. You are going to get killed if I get the money or not." After this, Shapiro had Berlinger sign a note demanding $10,000 ransom money, and sent it to the leader of the gang. On the following day Shapiro was informed that no ransom money would be paid, and from his actions Miller concluded that he intended to kill Berliner. Later that day, while Shapiro was out, Miller informed Berliner of his suspicion and told him he would cut him loose, even if he did not get any money, because he did not want to be implicated in a murder.

Early that evening Shapiro returned and told Miller that he had failed to get any money from the gang and that he was going to kill Berliner. Miller testified that he then urged Shapiro to make another effort, that they went out together, and Shapiro telephoned the gang, which again refused to pay anything for Berliner's release; that on their way back to the apartment Shapiro told him that they would drive to New York, and kill Berliner while on the road. To this, Miller testified, he demurred, saying that he would not commit a murder, to which Shapiro replied, "You'll go through with it, or else I'll give it to you." When Miller and Shapiro returned to the apartment, the latter told Berliner that he would let him go if he would drive him to New York. Berliner assented, whereupon Shapiro went out to get the automobile, taking the Taylor girl with him.

To this point the accounts of Miller and Berliner substantially agree. As to the subsequent occurrences their stories are almost directly opposed. Berliner, for the Commonwealth testified as follows: After the others had gone, Miller told him Shapiro was going to kill him on the way to New York but that he, Miller, did not want to do this, and...