Kilpatrick v. The Commonwealth

• Decision Date: 01 January 1858
• Citation: 31 Pa. 198
• Parties: Kilpatrick versus The Commonwealth.
• Court: Pennsylvania Supreme Court

31 Pa. 198

Kilpatrick versus The Commonwealth.

Supreme Court of Pennsylvania.

ERROR to the Oyer and Terminer of Philadelphia.

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David Paul Brown, Goforth, and Palethorp, for the plaintiff in error.—The Act of 1843, under which the court was held by the two associate judges, is in conflict with the Constitution, Art. 5, § 4, which provides "that the judges of the Courts of Common Pleas shall be justices of oyer and terminer and general jail delivery,

for the trial of capital and other offenders therein; any two of the said judges, the president being one, shall be a quorum."

At the last session of the legislature a bill passed both houses of the General Assembly, providing that any two of the judges of the Court of Common Pleas of Lancaster county, one of them being learned in the law, should have power to try all indictments in the oyer and terminer. But this bill was vetoed by the present Executive, on the ground that it conflicted with the Constitution: Veto Message, 12th April 1858. See, also, the opinion of C. J. LOWRIE, in 15 Leg. Int. 188; Commonwealth v. Flanagan, 7 W. & S. 68; Commonwealth v. Zephon, 8 Id. 382; 2 Hale P. C. ch. 1, 4, 5, 6, 27.

The alleged dying declarations were improperly admitted; they were not made under an impression of almost immediate dissolution, which is necessary to give them the same sanction as if made on oath: Rex v. Drummond, 1 Leach C. C. 337; 1 Stark Ev. 32; Rex v. Pike, 1 C. & P. 598; Rex v. Woodcock, 1 Leach C. C. 502; Rex v. Hucks, 1 Stark. R. 424; Rex v. Van Butchell, 3 C. & P. 629; 1 East C. L. 353; Rex v. Reason, 1 Str. 499; Rex v. Ashton, 2 Lew. C. C. 149; Rex v. Crockett, 4 C. & P. 542; Ealing's Case, 12 Vin. Abr. 118; Sussex Peerage Case, 11 Cl. & Fin. 108; Rex v. Spilsbury, 7 C. & P. 187; Rex v. Gray, Irish Cir. R. 76; Rex v. Christie, 2 Russ. on Cr. 754; Rex v. Fugent, 7 C. & P. 238; Vass v. Commonwealth, 3 Leigh 786; Smith v. The State, 9 Humph. 24; Rex v. Ehrington, 2 Lew. C. C. 148; Wilson v. Boerem, 15 Johns. 286; Lambeth v. The State, 23 Miss. 323, 354; Commonwealth v. Williams, 2 Ash. 69; 1 Taylor Ev. 504; Bartlett v. Smith, 11 M. & W. 483, 486; The State v. Poll, 1 Hawks 442, 444; Hill v. Commonwealth, 2 Gratt. 594; Commonwealth v. Murray, 2 Ash. 41; Wright v. Littler, 3 Burr. 1244; McDaniel v. The State, 8 Sm. & M. 416; 1 Greenl. Ev. 158; Rex v. Hayward, 6 C. & P. 160.

The court below erred in adopting Judge Rush's construction of the Act of 1794. The words, "wilful, deliberate, and premeditated killing," imply something more than "malice aforethought," which was what constituted the crime of murder at common law. The intent of the legislature was to distinguish between cases of murder upon provocation or excitement, not sufficient to reduce the crime to the grade of manslaughter, and those committed in cold blood, and with deliberate and premeditated malice.

The court took from the jury the question as to the grade of offence committed by the prisoner, by a binding charge that it was either murder in the first degree or manslaughter. The question, whether it was murder in the first or second degree, was not submitted to them, which was error: Pennsylvania v. Hanneman, Add. 149; 11 Wheat. 75; Coke Litt. 153 b, note 5; Id. 71 b. It was error to charge that the law presumes an intent to kill from the use of a deadly weapon. In England, the presumptions are against the prisoner, and he must rebut them; but, in Pennsylvania, they are in favour of the prisoner, and the Commonwealth must remove or overcome them: Commonwealth v. O'Hara, 7 Smith's Laws 694; McDaniel v. The State, 8 Sm. & M. 401; 1 Russell 388; Foster 253; Woodsides v. The State, 2 How. (Miss.) 655; Lambeth v. The State, 23 Miss. 322.

Malice is a technical expression, meaning absence of any excuse for homicide: Pennsylvania v. Lewis, Add. 283; Commonwealth v. Murray, 2 Ash. 41; Commonwealth v. Williams, Id. 69; Woodcock's Case; Foster 253, 256-257, 277, 291, 297, 355, 357, 395; 4 Bl. Com. 199; 1 Hale P. C. 456, 378, 432-433; 1 Hawk. P. C. 188, 378; 1 Russell, 513, 516, 518, 523, 580, 583, 585, 587; Bacon, tit. Murder, 19; 1 Hogan 429; 2 Str. 773; Add. 282-283, 163, 248, 256; 2 Ash. 73-74; 1 Hawk. P. C. § 30, p. 97; Commonwealth v. Mosler, 4 Barr 264; Commonwealth v. Harman, 4 Barr 270.

When a legal provocation is proved, intoxication may be taken into consideration to ascertain whether the slayer acted from malice or from sudden passion excited by the provocation: Rex v. Meakin, 7 C. & P. 297; Rex v. Thomas, 7 C. & P. 817; 1 Rus. on Crimes 8; State v. McCants, 1 Speers 384; Pennsylvania v. Fall, Add. 257. The mental state required for the crime of murder being one of deliberation and premeditation, the fact of the prisoner's drunkenness was material, not as an excuse for the crime, but to show it had not been committed: The State v. Bullock, 13 Ala. 413. Perhaps this case may have gone too far in refusing to allow drunkenness any weight upon the question of intention: Schaller v. The State, 14 Miss. 502; State v. Thompson, Wright 617. The fact of drunkenness may reduce a homicide from murder to manslaughter: Swan v. The State, 4 Humph. 136; Pirtle v. The State, 9 Humph. 570; Haile v. The State, 11 Humph. 154; Commonwealth v. Jones, 1 Leigh 612; Commonwealth v. Haggerty, 1 Lewis C. L. 403-405.

There was error also in the charge of the court as to cooling time. The principle, as laid down in Wharton's Criminal Law, is, "However great the provocation may be, if there be time for passion to subside and reason to interpose, the homicide would be murder." "In killing, whether blood had time to cool is a question for the court:" Regina v. Fisher, 8 C. & P. 182. The law assigns no time within which cooling time may be said to take place: Commonwealth v. Dougherty, 7 Smith's Laws 605; State v. McCants, 1 Speers 384. Was the wound given while smarting under wrong so recent and strong as not to be master of his own understanding? if so, the crime can be but manslaughter: Rex v. Hayward, 6 C. & P. 157; Rex v. Lynch, 5 C. & P. 324; 1 Hawk. P. C. § 30, p. 97; 1 Hall 453. If thought, contrivance, or provocation shown: Rex v. Kirkham, 8 C. & P. 115; State v. Norris, 1 Hayw. 429; People v. Garretson, 2 Wheeler C. C. 347; Foster 297; 1 Hall 432, 433; 2 Str. 773; 1 Russ. on Crimes 525; Rex v. Kelly, 2 Car. & Kirw. 814; Townsend's Mod. State Trials 151. Drunkenness is held proper for consideration where the sole question is whether the act done was premeditated, or done only with sudden heat and impulse: Kelly v. The State, 8 Sm. & M. 518; Regina v. Moore, 3 Car. & Kirw. 319; Regina v. Doody, 6 Cox C. C. 463.

In regard to the weight to be given to evidence of character, they cited Whart. on Homicide 245; 2 Russ. C. L. 85; 2 Mass. 317, 318; 7 C. & P. 373.

Loughead and Mann, District Attorneys, for the Commonwealth. —The maxim of stare decisis applies with peculiar force to the constitutional objection raised to the jurisdiction of the court. The very point was raised and decided in Commonwealth v. Zephon, 8 W. & S. 382; and that case was affirmed in Commonwealth v. Martin, 2 Barr 244; Commonwealth v. Ford, 5 Id. 67; In re Pennsylvania Hall, Id. 204; In re Northern Liberty Hose Company, 1 Harris 194.

The law in regard to dying declarations is correctly cited by the prisoner's counsel; their only difficulty is that its full requirements were complied with. It does not affect the question that the deceased did not actually die till the ninth day after: Woodcock's Case, 1 Leach C. C. 500; Tinckler's Case, 1 East P. C. 354; Rex v. Mosely, 1 Moody C. C. 97; Rex v. Benner, 6 C. & P. 386; Bennett & Heard's Lead. Cr. Cas. 236.

The charge of the court as to the construction of the Act of 1794 is fully sustained by the cases of Respublica v. Mulatto Bob, 4 Dall. 146; Commonwealth v. O'Hara, 7 Smith's Laws 694; Commonwealth v. Richard Smith, Whart. on Homicide 389; Commonwealth v. Green, 1 Ash. 289; Commonwealth v. Williams, 2 Id. 69; The State v. Spencer, 1 Zabr. 196; Commonwealth v. Murray, 2 Ash. 41; Commonwealth v. Daley, Whart. on Homicide, 466; Commonwealth v. Jones, 1 Leigh 610; Whart. Cr. L. 563.

Throughout the whole charge the three degrees of felonious homicide were kept before the jury; and it was impressed upon them, that they were to determine the grade of the offence from the evidence. In Commonwealth v. Green, 1 Ash. 289, the court went much further, and instructed the jury that the court was of opinion that the offence was one of murder in the first degree.

The counsel for the Commonwealth can see no error in the instruction as to what was sufficient cooling time, nor as to the weight to be given to evidence of good character. On these points it was as favourable to the prisoner as was warranted by the circumstances of the case.

The opinion of the court was delivered by STRONG, J.

This record presents several questions of the gravest importance. We are not insensible to their magnitude. Involving, as the case does, principles which lie at the basis of the administration of criminal justice, and possibly affecting human life, we have given it our most careful consideration.

The principal questions relate to the constitution of the court in which the indictment was tried, and to the instruction which was given to the jury. There are other minor things, which we shall not overlook.

The record exhibits that, at a court of Oyer and Terminer for the city and county of Philadelphia, John Kilpatrick, the defendant, was indicted, tried, convicted of murder in the first degree, and sentenced. The first assignment of error is that "it appears by the record that the case was tried by the Hon. James R. Ludlow and Joseph Allison, neither of whom was the President of the Court of Common Pleas; and therefore the...