Commonwealth v. Pacito

• Decision Date: 03 January 1911
• Docket Number: 213
• Citation: 229 Pa. 328,78 A. 828
• Parties: Commonwealth v. Pacito, Appellant
• Court: Pennsylvania Supreme Court

78 A. 828

229 Pa. 328

Commonwealth v. Pacito, Appellant

No. 213

Supreme Court of Pennsylvania

January 3, 1911

Argued October 3, 1910

Appeal, No. 213, Jan. T., 1910, by defendant, from judgment of O. & T. Phila. Co., Nov. Sessions, 1909, No. 273, on verdict of guilty of murder of the first degree in case of Commonwealth v. Antonio Pacito. Affirmed.

Indictment for murder. Before RALSTON, J.

The court charged in part as follows:

In the first place, what was the crime committed in this case? Four of the witnesses who have testified saw the shooting. They were Maria Silvia, Joseph Cosky, Sebastian Polito and Tony Bonella. These witnesses, who were either in the house or in the street near the house, testified that they saw the prisoner fire the shots which killed the deceased. Mrs Silvia testified that she was in the kitchen of the house where the deceased had been sitting, and that the prisoner called to the deceased, who went into the doorway or into the front room when the prisoner called him. From her testimony and that of the other witnesses who saw the shooting, it appears that the prisoner was standing in the front doorway, and that when the deceased came out from the kitchen he shot him. They heard three shots, and each saw one or more of the shots fired. There can, I suppose, be no reasonable doubt that the deceased came to his death by the act of the prisoner.

That crime, gentlemen, would be murder. It is not necessary for me to speak of other crimes, because we have to do with no crime but murder. A killing under such circumstances would undoubtedly be murder, and it is the duty of a jury in a trial for murder to determine whether it is murder of the first degree or of the second degree. As to the definition of these degrees of murder, I may say to you that in this case, if the crime is not murder of the first degree, it is murder of the second degree, and, if you do not find it to be murder of the first degree, you must necessarily, under the facts in this case, find it to be murder of the second degree.

Murder of the first degree is a willful, deliberate and premeditated killing. This is the most heinous crime known to our law. It means that the prisoner has had time to, and has made up his mind to kill the deceased, and that he has killed him in pursuance of that determination. As you know from everyday experience, it takes a very short time to form an intention. An intention may be formed almost instantaneously, and it matters not how long the prisoner may have had this intention; if he formed it almost immediately before and did intend to kill the deceased, and shot him with that purpose, it is murder of the first degree.

In determining what the intention of the prisoner was, you must determine it as you would any other fact in your ordinary, everyday experience in life. In determining a man's intention when he does a certain act, you may consider a declaration of his intention made by himself, if you have any evidence of such declaration. For instance, a man says that he is going to kill another and afterwards does it; from that you would conclude that he intended to kill the other person. There is no such declaration in this case to guide you as to the intention of the prisoner. Ordinarily, you must judge a man's intentions by his actions. Suppose you had been present, and had seen this deed committed as it has been described to you from the witness stand. Suppose that you had seen the prisoner fire a revolver into the forehead, or side of the head of the deceased, so that the bullet penetrated the brain and was found in the back of the head, and then fire another shot striking him in the chest under the collar bone, on the left-hand side, the bullet passing through to the shoulder blade in the back, and then fire a third shot when, as I think one witness who saw it testified, the deceased had fallen, which shot penetrated his buttock, what would you say was the intention of the man firing those shots? The third shot was probably a mere flesh wound, and although it may have done but little harm, you have the fact that he fired a third shot. If you had seen that, what would you conclude that he intended to do? What would be the result, in ordinary experience, of such an act? What would almost necessarily follow from shooting a man with a thirty-eight caliber revolver through the head, through the body, and then firing a third shot into his body when he was on the ground? What would be the almost inevitable consequence of such an act? In ordinary experience, it would result in the man's death. If you saw a man commit such an act, would you be satisfied that he intended to kill the deceased -- in short, that he intended the natural, probable and ordinary consequence of his action? From that evidence, if you find that the prisoner intended to kill the deceased and did so in pursuance of that intent, then he would be guilty of murder of the first degree. There is no dispute as to that testimony. It is uncontradicted.

Verdict of guilty of murder of the first degree.

Errors assigned amongst others were (2) portion of charge as above, quoting it; (4) because the learned court below erred in not referring in any portion of his charge to the specific form of insanity, to wit, delusional insanity, which the testimony on behalf of defendant tended to show might have existed in the defendant's mind at the time of the shooting; (6) because the learned judge of the court below erred in not stating to the jury in his charge that the presumption of law in a case of murder rises no higher than a presumption that the crime is murder of the second degree.

Judgment affirmed and record remitted in order that execution may be had according to law.

Chester N. Farr, Jr., with him Michael A. Spatola, for appellant.

Joseph H. Taulane,...