Green v. Commonwealth

• Decision Date: 20 November 1876
• Citation: 83 Pa. 75
• Parties: Green <I>versus</I> Commonwealth.
• Court: Pennsylvania Supreme Court

83 Pa. 75

Green versus Commonwealth.

Supreme Court of Pennsylvania.

November 10, 1876.

November 20, 1876.

November 10th 1876.

Before AGNEW, C. J., SHARSWOOD, GORDON, PAXSON and WOODWARD, JJ. WILLIAMS and MERCUR, JJ., absent

Error to the Oyer and Terminer of Allegheny county: Of October and November Term 1876, No. 209 J. C. Graham and J. H. Baldwin, for the plaintiff in error.— The evidence shows that there must have been a conflict; and if so, the verdict of murder in the first degree was not justified by the facts.

The first point was in the exact language of the charge in Commonwealth v. Drum, 8 P. F. Smith 9.

If the act was done in a moment of impetuous rage or passion, the offence was murder in the second degree: 2 Whart. Crim. Law, §§ 932, 935, 944, 978; Hopkins v. Commonwealth, 14 Wright 9; Kilpatrick v. Commonwealth, 7 Casey 202.

T. M. Bayne (with him E. A. Montooth, District Attorney), contrà.

Chief Justice AGNEW delivered the opinion of the court, November 20th 1876.

Upon a careful examination of the evidence in this case, we find that all "the ingredients necessary to constitute murder in the first degree were proved to exist." The prisoner and the deceased had been upon bad terms and involved in litigation immediately before the homicide. The former, on the next morning after the lawsuit, had threatened the life of the latter. In the evening of the killing he stopped before the door of the house where the deceased was sitting at supper, and asked the latter what he was going to do about the potatoes, a subject of difficulty between them. This led to an angry altercation, the deceased using bad language and threatening to give the prisoner a good pounding. The prisoner having started up the road toward home, saying he would bring suit next day, the deceased ran back to the fireplace, picked up a poker, and running out of the house, called to the prisoner to come back, saying if he came he would not go away alive. The prisoner, then being some yards up the road, said, "I will come," and started toward the deceased, and before reaching him levelled at him a gun he had been carrying in his hand. The latter said, "Shoot, if you want to." At the same instant the report and flash of the gun were heard and seen. The deceased fell near the spot where he stood before the house; the sound of a heavy blow was heard, and very soon the prisoner started off toward home. The deceased was found with a large gash in his head; a piece of the gun-barrel, about one foot long, was shortly afterwards found near by, and the broken gun carried off by the prisoner found at his house on the same evening. No one saw the blow struck, yet the sound of it, the broken piece near the spot, the fractured gun, and the cut in the head of the deceased, leave no doubt of the fact. Nor is it very material where and how precisely the blow was struck, as the evidence, beyond a question, proves that the gun was fired before the prisoner reached the deceased, and the bullet-wound was the undoubted cause of death. Still the fact of the blow is important in determining the state of the prisoner's mind and his disposition toward the deceased. Had the conflict and the blow occurred before the shooting, a different case would have been presented bearing on the prisoner's state of mind and intention. But here one whose mind had before been inflamed toward the deceased, who had threatened him, levelled a loaded gun and fired at him, at some distance and before the latter had committed an assault upon him, or could have reached him with the poker held in his hand, and found still in it when carried into the house.

It is evident, therefore, that there was ample time for the prisoner to frame in his mind the deliberate purpose to shoot the deceased, and to carry this intent out, by levelling his gun and discharging it, when told to shoot. It is no doubt true that he was also irritated by the very bad language of the deceased; but this was no sufficient cause of provocation for taking life; while the turning back of the prisoner, when...