Commonwealth v. Wucherer.

CourtUnited States State Supreme Court of Pennsylvania
Citation351 Pa. 305,41 A.2d 574
Decision Date19 March 1945

351 Pa. 305
41 A.2d 574


Supreme Court of Pennsylvania.

March 19, 1945.

Appeal No. 277, January term, 1944, from judgment and sentence of Court of Oyer and Terminer and General Jail Delivery, Montgomery County, No. 46, November term, 1943; George C. Corson, Judge.

Helen M. Wucherer was convicted of murder in the second degree, and she appeals.

Judgment affirmed.

41 A.2d 575


William A. Gray and Edward D. Barker, both of Philadelphia and Charles H. Brunner, Jr., of Norristown, for appellant.

Frederick B. Smillie, Dist. Atty., and Thomas E. Waters and David E. Groshens, Asst. Dist. Attys., all of Norristown, for appellee.


Defendant makes what the District Attorney properly characterizes as a ‘frontal attack’ on the law of evidence relating to the proof of murder,-an attack which cannot be sustained by the weight of authority, by expediency, or by analytic reasoning.

Helen M. Wucherer and August Wucherer were married in 1930 or 1931. They lived together in apparent amity until the husband came under the spell of another woman; thereafter he was cruel to his wife both in words and action. Some time around the middle of October, 1943, she purchased a revolver for the purpose, as she claims, of committing suicide. On the night of October 30, 1943, she implored her husband to resume his affection for her, but he repelled her, stating that he was in love with this other woman and wanted to marry her as soon as he could obtain a divorce. She thereupon went into an adjoining room, took the revolver, came back, and, at close range, fired five shots into his body, inflicting wounds in his head, neck and chest. He died within the hour.

All the testimony offered by defendant at the trial was in regard to the circumstances leading up to the killing, the manner in which it occurred, and in support of a defense of insanity. The jury rendered a verdict of guilty of murder in the second degree.

On this appeal defendant presents only one question for consideration: Did the court below err in charging the jury that where there is an unlawful and felonious homicide there is a presumption that such killing was malicious, and that as a general rule all homicide is presumed to be malicious? Defendant's able counsel admits that the rule thus stated is in accordance with the law of Pennsylvania, 1 but submits that it should be abolished because inconsistent with the presumption of innocence and with the burden cast upon the Commonwealth to prove guilt in respect to each and every element necessary to constitute murder.

The portion of the charge to which objection is made was an accurate pronouncement of our law as it has existed from the very beginning of the Commonwealth. As early as 1793 Addison, J., charged a jury that ‘Prima facie, every killing in murder, for malice is presumed, unless the prisoner show extenuating circumstances, which take away the presumption of malice. * * * the law implies malice, and the defendant must show provocation, to rebut the presumption of malice.’ Com. v. Honeyman, Add. 147, 148. In Com. v. McFall, Add. 255, 257, the same judge charged that ‘every unlawful killing is presumed murder, unless the person accused can show such circumstances, as will reduce it to a lower degree of homicide,’ and in Com. v. Lewis, Add. 279, 282, that ‘By the law of England, all unlawful killing is presumed murder, until some extenuating circumstances are shown by the prisoner, lessening the degree of the offence to something lower than murder. Malice is presumed till want of malice is shown.’ From that time-150 years ago-until the present, in an almost continuous stream of reported cases, the same doctrine is repeated. 2

41 A.2d 576

And already in 1858 this court said, in Kilpatrick v. Commonwealth, 31 Pa. 198, 216, 3 Phila. 237, 15 L.I. 347: ‘In all these [authorities], there is no essential variance of doctrine. A construction so uniform, so long-continued, and which had remained untouched by the legislature, from 1795 to the present day, we are not at liberty to repudiate.’ In Commonwealth v. Drum, 58 Pa. 9, 18, was formulated the expression of the rule which, with but slight variation, has ever since been adopted by Pennsylvania judges in their charges to juries in murder cases, and thousands of trials have been, and constantly are being, conducted, in which it is employed as one of the accepted features of procedural law applicable to such cases. 3 Even were it deemed a doctrine which should no longer prevail, certainly, in the face of so venerable a history, the remedy should be sought, not in the courts, but in the Legislature, the function of the former (at least where principles have become firmly imbedded in the warp and woof of judicial interpretation) being to declare what the law is, and that of the Legislature to change existing law by statutory fiat.

The rule in question did not originate in Pennsylvania. It stems from a hoary English antiquity. All the commentators on criminal law from Coke (3 Inst. 52) through Hale (1 P.C. 455), Hawkins (1 P.C. ch. 13, sec. 32), Bacon (Abr.; Murder and Homicide (c) 2), Foster (Crown Law 255), Blackstone (4 Com. 201), and East (1 P.S. 340, sec. 106) to and including Halsbury (9 Laws of England 426), state the doctrine in assured and categorical terms. It is true that some of the states have seen fit, either by statute or otherwise, to modify it at least to some extent and that its historical authenticity was attacked in Woolmington v. Director of Public Prosecutions [1935] A.C. 462, but even in that case it was stated that malice may be...

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