Commonwealth v. Ross

• Decision Date: 08 March 1920
• Docket Number: 44
• Citation: 110 A. 327,266 Pa. 580
• Parties: Commonwealth v. Ross, Appellant
• Court: Pennsylvania Supreme Court

110 A. 327

266 Pa. 580

Commonwealth v. Ross, Appellant

No. 44

Supreme Court of Pennsylvania

March 8, 1920

Argued February 17, 1920

Appeal, No. 44, Oct. T., 1920, by defendant, from judgment of O. & T. Allegheny Co., Nov. T., 1918, No. 23, on verdict of guilty of murder of the first degree in case of Commonwealth v. Joe Ross. Reversed.

Indictment for murder. Before KLINE, J.

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

Verdict of guilty of murder of the first degree upon which judgment of sentence was passed. Defendant appealed.

Errors assigned were various rulings and instructions, discussed in the opinion of the Supreme Court.

The sixth assignment of error, relating to the measure of proof necessary to establish self-defense, is sustained and thereupon the judgment is reversed and a venire facias de novo awarded.

John F Haggerty and A. M. Oliver, for appellant. -- The trial judge in so many words instructed the jury that if any doubt of self-defense exists, self-defense is not established. Surely that is not the law: Com. v. Palmer, 222 Pa. 299; Meyers v. Com., 83 Pa. 131.

R. M Gibson, with him Harry H. Rowan, District Attorney, and Harry A. Estep, Assistant District Attorney, for appellee, cited: as to the admission of the knife in evidence, Com. v. Karamarkovic, 218 Pa. 405.

As to the corpus delicti: Gray v. Com., 101 Pa. 380; Com. v. Russogulo, 263 Pa. 93.

As to self-defense: Com. v. Palmer, 222 Pa. 299.

Before BROWN, C.J., STEWART, MOSCHZISKER, FRAZER, WALLING and KEPHART, JJ.

OPINION

MR. JUSTICE WALLING:

This appeal is by defendant from judgment upon conviction of murder of the first degree. Defendant and Luke Halipow, the deceased, resided in the same neighborhood in Pittsburgh, and, on the evening of October 2, 1918, they were out together and visited a saloon, where they drank some, and in the course of an argument the deceased struck or slapped defendant, and it became known that the latter had a knife, although he made no attempt to use it there. After leaving the saloon they had some slight altercation on the street and defendant went to his boarding house, washed the blood from his face and about fifteen minutes later reappeared upon the street, and, coming up to the deceased, killed him with a knife stab in the breast. Defendant contends that while out in search of an officer he was set upon by the deceased and inflicted the wound in self-defense. In reviewing that contention the trial judge instructed the jury, inter alia: "Where the defense is self-defense, it is not enough to present evidence under which the jury may doubt whether or not the defendant may have acted in self-defense. When any doubt on that subject exists, self-defense is not established. But when established by a fair preponderance of the evidence, it is excusable homicide." This was clearly right in placing upon defendant the burden of establishing self-defense by a fair preponderance of the evidence, and in stating that it was not sufficient for him merely to raise a doubt in the minds of the jury as to whether or not he acted in self-defense. Like insanity, it is an affirmative defense as to which the burden of proof rests upon the defendant, but it is not necessary to establish it beyond a reasonable doubt. A fair preponderance of the evidence is all that is required: Com. v. Colandro, 231 Pa. 343; Com. v. Molten, 230 Pa. 399; Com. v. Gerade, 145 Pa. 289; Meyers v. Com., 83 Pa. 131. Hence, the clause of the charge above quoted that, "when any doubt on that subject exists, self-defense is not established," is wrong, for there may be a doubt as to a fact established by the preponderance of the evidence: Com. v. Lee, 226 Pa. 283. That statement was equivalent to saying that self-defense must be established beyond a doubt, which is incorrect, for it ignores the distinction between fairly preponderating evidence and that which is beyond a reasonable doubt. We know, as lawyers, that the trial judge had no such thought in mind -- in fact, he repeatedly stated the law to the jury upon this branch of the case with entire accuracy; but we cannot know judicially that the accidental misstatement did defendant no harm. It is enough that the jury may have received thereby a wrong impression as to the quantum of proof necessary to establish self-defense. In Com. v. Deitrick, 218 Pa. 36, Mr. Justice ELKIN, speaking for the court (p. 39), says: "While we agree with the suggestion of the learned counsel for the Commonwealth, made at the argument, that courts will not be astute to sustain technical objections in the trial of such cases when substantial justice had been accorded the defendant, it, however, has never been held that where clear error appears in the instructions to the jury upon the vital and controlling defense set up, the appellate court can judicially say no harm was done the defendant and therefore no reversible error was committed."

A misstatement of the law in one part of a charge is not cured by a correct statement thereof in another part, as it is impossible to know which the jury accepted (Com. v Divomte, 262 Pa. 504). In the language of the Chief Justice, in Com. v. Wooley, 259 Pa. 249, 253, "where correct and erroneous instructions are given in a charge, it is not to be conjectured, especially in a capital case, which the jury followed"; and see Calhoun v. Holland Laundry, 220 Pa. 281; Rice v. Com., 100 Pa. 28. One part of a charge may clear...