Commonwealth v. Palmer

• Decision Date: 12 October 1908
• Docket Number: 186
• Citation: 222 Pa. 299,71 A. 100
• Parties: Commonwealth v. Palmer, Appellant
• Court: Pennsylvania Supreme Court

71 A. 100

222 Pa. 299

Commonwealth v. Palmer, Appellant

No. 186

Supreme Court of Pennsylvania

October 12, 1908

Argued October 5, 1908

Appeal, No. 186, Jan. T., 1908, by defendant, from judgment of O. & T. Berks Co., Dec. T., 1907, No. 71, on verdict of guilty of murder of the first degree in case of Commonwealth v. Frank Palmer. Affirmed.

Indictment for murder. Before ENDLICH, J.

The facts are stated in the opinion of the Supreme Court.

Verdict of guilty of murder of the first degree. Defendant appealed.

Error assigned was portion of charge quoted in the opinion of the Supreme Court.

Both assignments of error are overruled, the judgment is affirmed and the record remitted for the purpose of execution.

Robert Grey Bushong, with him D. N. Schoeffer, for appellant.

Harry D. Schoeffer, district attorney, for appellee, was not heard.

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE BROWN:

The victim of this homicide was a woman with whom the prisoner had lived in illicit relations. He admitted the killing, but attempted to justify it as an act of self-defense. His story on the trial was that they had quarrelled a number of times that on the evening of the killing they went to a lonely spot in the city of Reading, where they again quarrelled; that she there drew a revolver upon him, which he took from her and threw away; that she then grabbed him and struck him with some object; that before he started with her to the place of the killing, he had put a razor in his pocket for his protection, thinking she would attempt to do him bodily harm, and that when she grabbed him a second time, believing his life was in danger, he threw his arm around her neck and, holding her head back, cut her throat; that without releasing him she sank down, and he then, sitting upon her stomach, cut her throat a second time. The uncontradicted evidence was that there were five cuts upon her body.

On this appeal two errors are alleged to have been committed by the court below, the first in the following instruction to the jury: "As to whether a reasonable doubt shall establish the existence of a plea of self-defense, the law is this: If there be a reasonable doubt that any offense has been committed by the prisoner, it operates to acquit, but if the evidence clearly establishes the killing by the prisoner purposely, with a deadly weapon, an illegal homicide of some kind is established, and the burden then falls upon the prisoner, and not the commonwealth, to show that it was excusable as an act of self-defense. If, then, his evidence leaves his extenuation in doubt, he cannot be acquitted of all crime, but must be convicted of homicide in some of its grades, of manslaughter at least." These are the exact words of AGNEW, J., in his charge to the jury when specially presiding in Com. v. Drum, 58 Pa. 9. That charge was accepted at the time by his associates in this court as a clear and correct exposition of the law of homicide and as a precedent and guide in the trial of such cases. We have since frequently approved it, the present chief justice very recently saying of it: "Its substantial accuracy has never been challenged:" Com. v. Pease, 220 Pa. 371.

When the commonwealth clearly establishes an intentional killing by the use of a deadly weapon,...