Commonwealth v. Neill

• Decision Date: 24 June 1949
• Citation: 362 Pa. 507,67 A.2d 276
• Parties: Commonwealth v. Neill, Appellant
• Court: Pennsylvania Supreme Court

67 A.2d 276

362 Pa. 507

Commonwealth v. Neill, Appellant

Supreme Court of Pennsylvania

June 24, 1949

Argued April 11, 1949

Appeal, No. 40, Jan. T., 1949, from judgment and sentence of Court of Oyer and Terminer and Quarter Sessions of the Peace of Philadelphia County, Oct. Sessions, 1947, Nos. 48 and 49 in case of Commonwealth v. George A. Neill, otherwise George Neill. Judgment and sentence affirmed; reargument refused July 19, 1949.

Indictment charging defendant with murder. Before MILNER, J.

Verdict of guilty with penalty of death and judgment of sentence entered thereon. Defendant appealed.

Judgment and sentence affirmed.

Harry M. Berkowitz, for appellant.

Emanuel W. Beloff, Assistant District Attorney, with him John H. Maurer, District Attorney, for appellee.

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

OPINION

MR. JUSTICE HORACE STERN

Defendant appeals from a conviction of murder of the first degree with the penalty of death. Notwithstanding an intensive study of the record commendably made by his counsel in order to detect and expose errors committed by the court below, we are not convinced that there were any of sufficient importance to justify, much less require, the granting of a new trial.

Defendant is a young man twenty-two years of age. From his earliest youth he has lived an extremely unsettled life. He attended elementary public schools and junior high school in Philadelphia but ran away from home several times during that period and was finally transferred to a disciplinary school; the psychological clinic attached to that school found him to be an "unstable, socially maladjusted boy". After going away to the west coast he worked, first at ranching, then at a succession of different jobs, and then on ships of the merchant marine. In Texas, at the age of 17, in 1942, he enlisted in the United States Marine Corps and was shortly thereafter sent with replacements to Guadalcanal and the Pacific theatre of the war, where he became engaged in active combat service and had several harrowing experiences. He contracted a severe case of malaria and was hospitalized in New Zealand as a casualty because of this illness and combat fatigue. On his return to the United States he was invalided out of the service with an honorable discharge. The next few years of his life were marked by a succession of temporary jobs, marriage at 18 to a woman six years his senior, quarrels with her which resulted ultimately in divorce, disagreements with various members of his family, and, in general, a postwar restlessness. He had several recurrent attacks of malaria and was admitted at intervals to Naval and Marine Hospitals in San Francisco, Philadelphia and San Diego. He again entered upon service in the merchant marine; this brought him to foreign countries, but he afterwards left the sea and, during the summer of 1947, worked on a farm; toward the end of that summer he had in mind to go once more to the west coast, but, preparatory to departing, he visited the home of his sister, Mrs. Mallon, in the Kensington district of Philadelphia, principally in order to obtain some money which belonged to him and of which she was acting as custodian. It was at this point that the crime was committed which is the subject of this appeal.

The facts, briefly stated, are as follows: One of his sister's children was a young girl, Isabella, not quite 12 years of age. At about 5.30 o'clock on Saturday afternoon, September 6, her mother gave her some money to go out and buy herself a pair of socks; defendant, stating that he wished to purchase a polo shirt, left the house with her. According to his testimony he had been for some time "jumpy and nervous", was suffering from headaches, and had been drinking to some extent. After strolling with Isabella for a while along Kensington Avenue and eating with her at a restaurant he offered to take her to a place where she could ride a pony, at which suggestion she "jumped with joy". They entered a taxicab and, at his direction, were driven to the athletic field of a boys' club at Front Street and Erie Avenue. but, finding the gates of the field closed, they walked north together to Luzerne Street, east to Whitaker Avenue, and then down the latter toward Erie Avenue again. At that point, on the east side of Whitaker Avenue, there is a large open lot some 1300 fet long by 450 feet wide of which the southern end was used by boys as a baseball field out the greater portion was in the nature of a pathless waste of rough terrain covered thickly with bushes and weeds of a height of from 4 to 6 feet. Telling Isabella that he would show her the place where he used to play baseball as a boy, defendant climbed with her the five foot elevation which led up to this lot and traversed it for a distance of some 300 feet or more toward the railroad tracks which skirted its eastern border. The facts thus stated and those which describe the subsequent happenings are derived entirely from defendant's written confessions. He began violently to hug and kiss Isabella; she objected; he says that he became intensely passionate; she lay on the ground on her back amid the thick weeds; he cannot recall whether she did this at his proposal but he "guessed" that he suggested it. He lay beside her, caressing and fondling her in a lewd manner and taking indecent liberties with her person; he intended to ask her to relieve his passion "in same way or other"; he does not remember whether or not his person was exposed. Meanwhile she had started to cry and scream, and, according to a statement made in his confessions, she threatened to tell her parents, whereupon he became frightened, put his hand over her mouth and "the next thing he knew" he was choking her with both his hands and she was gasping for air and bleeding from the nose. In his testimony at the trial he said her did not know whether she did threaten to tell her parents, and he intimated that his former statement to that effect had been elicited by pressure on the part of his interrogators. When he released his hands, and she lay limp and motionless, he said that he realized what he had done; he fled from the scene, stopped at a bar for drinks, washed some blood from his face, and then wandered back to his sister's house where he arrived between 7.30 and 8.00 o'clock in the evening. He said nothing to his sister or to any members of the household as to what had happened but gave an equivocal answer to their inquiries as to what he knew of Isabella's whereabouts; he washed, shaved, changed his shirt, and then left and went to a farm in Maryland where he took employment and where he was subsequently apprehended. The body of Isabella lay on the lot undiscovered for 13 days; it was then found, in the midst of weeds 4 to 6 feet high, in an advanced state of decomposition.

The court instructed the jury that defendant was guilty of murder of the first degree if he committed the crime either with premeditation or during the course of an attempt to commit rape. The principal contention now urged by defendant's counsel is that, although the evidence admittedly disclosed an indecent assault, it did not establish an attempt to commit rape. It is true, of course, that, to constitute such an attempt, there must be not only an intent but also some overt act which seeks to carry that intent into execution. It is also true that the term "rape" as used in the murder statute is limited to rape at common law and does not include statutory rape: Commonwealth v. Exler, 243 Pa. 155, 158-160, 89 A. 968, 969, 970. But, taking the facts as to what occurred from defendant's confessions, from his testimony on the witness stand, and from all the surrounding circumstances, we have no hesitation in concluding that the evidence was amply sufficient to permit a jury to infer that it was not only defendant's intention to commit rape if he could not gain Isabella's voluntary consent to sexual relations, but that, knowing from her attitude toward his caresses that he could not possibly obtain such consent, he proceeded by overt acts of aggression to accomplish his purpose. Indeed if, as he testified, he was not certain whether she threatened to tell her parents, his choking her might well have been, not for the purpose of silencing her, but in furtherance of a frenzied attempt to overcome her resistance to his attack. In Commonwealth v. Prenni, 357 Pa. 572, 574, 575, 55 A.2d 532, 533, it was held on testimony much weaker than the present that the jury was warranted in drawing the inference that an attempt had been made to commit rape and that there was enough evidence to support a finding that the death of the victim resulted from an attempt to force sexual intercourse with her against her will.

The sole defense offered by defendant was that of insanity but the evidence on that question favorable to defendant was extremely unconvincing. An expert witness testifying on his behalf expressed the opinion that he suffered from a "recurrent confusional insanity" that lasted however, only for the time that elapsed between his fondling the child and his becoming conscious that he had his hands around her throat and she was bleeding from the nose; thereupon he regained his sanity and ran from the scene of the crime. Apart from the fact that "confusional insanity" is apparently an antiquated and discarded theory and that the proposition that there could be such a thing as a momentary insanity was sharply challenged by an expert witness for the Commonwealth, it would seem quite obvious that defendant's witness failed to differentiate between a mere temporary frenzy or emotional excitation, and insanity within the legal meaning of that term, namely, inability, from disease...