Commonwealth v. Paese
| Decision Date | 02 March 1908 |
| Docket Number | 7 |
| Citation | 220 Pa. 371,69 A. 891 |
| Parties | Commonwealth v. Paese, Appellant |
| Court | Pennsylvania Supreme Court |
Argued January 6, 1908
Appeal, No. 7, May T., 1907, by defendant, from judgment of O. & T. Dauphin Co., on verdict of guilty of murder in the first degree in case of Commonwealth v. Frank Paese. Affirmed.
Indictment for murder. Before CAPP, J.
The facts are stated in the opinion of the Supreme Court.
Errors assigned were (1, 2) the instructions, quoted in the opinion of the Supreme Court.
The judgment is affirmed and the record remitted to the court below for the purpose of execution.
John R Geyer, with him John E. Fox and O. G. Wickersham, for appellant.
John Fox Weiss, district attorney, with him W. H. Musser and Leroy J. Wolfe, for appellee.
Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.
Briefly stated the substance of the case was that three Italians, who had been drinking (but to what extent they were affected by it became a question for the jury) got into an altercation about fares with the conductor and motorman of a car; a fight ensued between one of them, not the appellant, and the motorman, in which the latter, alleged to be much the larger and heavier man, beat the other severely. He then started back to his post at the front of the car when the appellant drew a revolver and fired five shots, stepping forward as he fired each shot. Appellant was tried and convicted of murder of the first degree.
The first assignment of error is that the court refused to affirm the following point: "If the jury believe that the deceased had just made an attack and committed a violent assault and battery upon George Paese who was much the inferior of the deceased in size and weight, and that this was done in the presence of the defendant, who was the friend and companion of George Paese, and they also find that this attack so excited the passion of the defendant as to destroy all selfcontrol, and that in this condition of ungovernable rage and without sufficient cooling time he shot and killed the person so attacking, the grade of the homicide is clearly but manslaughter."
Before taking up the exact question raised by this point it may be well to dispose of two smaller matters that were claimed at the argument to be in the case. It was claimed that the deceased kicked the appellant in the stomach as he passed him just before the shooting. The jury found there was no such kicking. It was further claimed that the disparity in size and apparent strength of the two men in the fight might make the appellant justly apprehensive for the life or grievous injury of his friend and he might, therefore, intervene to prevent a felony. But the evidence is practically undisputed that the fight was over and the deceased was retiring from the scene when the appellant drew his revolver.
The single question, therefore, remains whether conceding the beating to have been such as if inflicted upon the appellant himself would have permitted the jury to reduce the killing to manslaughter, it can have that effect when made upon another merely a friend.
To reduce an intentional blow, stroke or wounding, resulting in death, to voluntary manslaughter, there must be sufficient cause of provocation and a state of rage or passion, without time to cool, placing the prisoner beyond the control of his reason, and suddenly impelling him to the deed. If any of these be wanting -- if there be provocation without passion, or passion without a sufficient cause of provocation, or there be time to cool, and reason has resumed its sway, the killing will be murder: Com. v. Drum, 58 Pa. 9 (17).
What is sufficient provocation for this purpose has not been exactly defined, and is probably incapable of exact definition, for it must vary with the myriad shifting circumstances of men's temper and quarrels. It is a concession to the infirmity of human nature, not an excuse for undue or abnormal irascibility, and, therefore, to be considered in view of all the circumstances. It is usually said that the sufficiency of the provocation is for the court. And such is the general rule, but it must not be taken too broadly, but applied to cases where the facts are undisputed or clearly established. Thus, for example, in a case put by Sir Matthew Hale (1 Hale, Pleas of the Crown, 455) and much cited by writers on the subject of provocation, "If A. be passing on the street and B. meeting him (there being convenient distance between A. and the wall) takes the wall of A. and thereupon A. kills him, this is murder; but if B. had jostled A. this jostling had been a provocation and would have made it manslaughter." But even of this case, assuming the question of sufficiency to be for the court, Russell says, it "probably supposes considerable violence and insult in the jostling:" 1 Russell on Crimes, 714. In Hale's time when the streets even of London were rarely paved, "to take the wall" of another meant practically to force the other into the middle of the street with its attendant inconveniences dirt, etc., and perhaps danger from vehicles and horses. Hence "to take the wall" of a woman or a man of superior rank was a serious insult, likely in the days when all gentlemen habitually went armed to be promptly followed by the invitation to "draw." The view of it as an insult has its survival to the present day in the canons of politeness in passing a lady on the street, and there were in my younger days and perhaps even yet circumstances and parts of the country where the discourtesy of taking the wall of a lady would provoke resentment and perhaps a breach of the peace from her escort. In the case put by Hale, there might as indicated by the comment of Russell, be considerable discrepancy and doubt upon the evidence as to the exact facts of the jostling and these of course would have to be passed upon by the jury necessarily involving their sufficiency as provocation. While, therefore, the sufficiency of the provocation is in general for the court, it may in some cases be so combined with questions of fact as to be for the jury. In the present case there being no disputed facts, the appellant's own point stating them as he claimed them to be, the learned judge was right in ruling upon them as a matter of law.
The next question is whether his ruling was correct. Though the sufficiency of the provocation has not been exactly defined, there are some points in regard to it which are well settled. Thus, no words nor mere gestures, however false, foul or insulting, will free a party killing from the guilt of murder: Russell, 714. Nor will slight or trivial injuries, though they amount in law to an assault, nor in all cases even a blow: Russell, 715. Chief Justice AGNEW, in Com. v. Drum, 58 Pa. 9 (17), classes the two offenses together, and says: "Insulting or scandalous words are not sufficient cause of provocation; nor are actual indignities to the person of a light and trivial kind." But in the case before him the alleged provocation was the threat of serious injury and the weapon used in the killing was a knife, and in the sentence quoted he was not dealing with details which the case did not call for, but merely rounding out for the information of the jury his general discussion of the subject. He certainly did not mean to depart from the accepted law, which is thus stated by Foster: "Words of reproach, how grievous soever, are not a provocation sufficient to free the party killing from the guilt of murder. Nor are indecent provoking actions or gestures expressive of contempt or reproach, without an assault upon the person.
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...Criminal Law 654-59 (2d ed. 1986); Rollin M. Perkins & Ronald N. Boyce, Criminal law 85-98 (3d ed. 1982). (40) Commonwealth v. Paese, 69 A. 891, 892 (Pa. 1908). (41) Girouard v. State, 583 A.2d 718, 722 (Md. 1991) (describing this as the "overwhelming" rule). (42) 570 N.E.2d 918 (Ind. C......
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...See Rex v. Greening, 3 K.B. 846, 23 Cox Crim. Cas. 601 (1913).[201] Perkins & Boyce, Note 27, supra, at 93. [202] Commonwealth v. Paese, 69 A. 891, 892 (Pa. 1908).[203] Maher v. People, 10 Mich. 212, 222-23 (1862).[204] Provocation, even in its expanded modern version, is limited to unlawfu......
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...See Rex v. Greening, 3 K.B. 846, 23 Cox Crim. Cas. 601 (1913).[200] . Perkins & Boyce, Note 27, supra, at 93.[201] . Commonwealth v. Paese, 69 A. 891, 892 (Pa. 1908).[202] . Maher v. People, 10 Mich. 212, 222-23 (1862).[203] . Provocation at common law, even in its expanded modern version, ......
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TABLE OF CASES
...176 Pace v. State, 224 N.E.2d 312 (Ind. 1967), 444 Pacheco v. State, 770 S.W.2d 834 (Tex. App. 1989), 321, 417 Paese, Commonwealth v., 69 A. 891 (Pa. 1908), 502 Palato v. State, 988 P.2d 512, 417 Palendrano, State v., 293 A.2d 747 (N.J. Super. Ct. Law Div. 1972), 28, 29, 35 Palmer v. State,......