Lane v. The Commonwealth

• Decision Date: 18 November 1869
• Citation: 59 Pa. 371
• Parties: Lane <I>versus</I> The Commonwealth.
• Court: Pennsylvania Supreme Court

59 Pa. 371

Lane versus The Commonwealth.

Supreme Court of Pennsylvania.

November 4, 1868.

November 18, 1869.

November 4th 1868.

Before THOMPSON, C. J., AGNEW, SHARSWOOD and WILLIAMS, JJ. READ, J., absent

Error to the Court of Oyer and Terminer of Allegheny county.

W. T. Haines, for plaintiff in error.—The act does not mean that all killing by poison is murder in the first degree: Commonwealth v. Keeper of Prison, 2 Ashmead 235. The 74th section of the Act of March 31st 1860, Pamph. L. 401, Purd. 230, pl. 82, which is a transcript of the Act of April 22d 1794, 3 Sm. L. 187, gives the power to the jury to find the degree of murder untrammelled by any compulsory direction of the court. He also cited Rhodes v. Commonwealth, 12 Wright 396; State v. Dowd, 69 Conn. 391; Wharton on Homicide 361; 8 Ohio St. R. N. S. 634; Wharton's Amer. Crim. L. 926, and in notes; Commonwealth v. Flanagan, 7 W. & S. 415.

L. B. Duff, District Attorney, for Commonwealth.

The opinion of the court was delivered, November 18th 1869, by THOMPSON, C. J.

The prisoner, Lewis Lane, was charged and tried at the June Term of the Court of Oyer and Terminer of Allegheny county, for the murder of his wife, by administering poison to her; and the question now for our consideration is whether the court below erred in the portions of the charge to the jury excepted to and assigned for error, which are as follows: — "First — The life or death of this man is in your hands; there is no middle course; he must be convicted of murder of the first degree, or acquitted of everything."

"If your verdict is guilty of murder, you must state of the first degree. If not guilty you say so, and no more."

The objection to these portions of the charge is, that they were peremptory, and took from the jury their exclusive right and duty to find the degree, in case of a conviction of murder. It was contended on argument, that in all trials for murder, by whatever means perpetrated, it is always the province and duty of the jury, if they convict, to find in their verdict the degree, and that this being the requirement of the statute, a binding instruction from the court to find a particular degree, is an infringement of the duty intrusted alone to the jury, and not to the court.

The 74th section of the Act of 31st of March 1860, which is a transcript of the provision on the same subject of the Act of 22d of April 1794, enacts that "All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration of or the attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed murder of the first degree, and all other kinds of murder shall be deemed murder of the second degree; and the jury before whom any person shall be tried shall, if they find such person guilty thereof, ascertain in their verdict, whether it be murder of the first or second degree."

It must be admitted, we think, that the act makes no distinction as to the requirement to find the degree of murder, between any of the modes by which it may be perpetrated, as defined in the statute. In all alike the requirement applies without any exception. Even in case of a confession of the crime and submission to the court, no matter by what means it may have been perpetrated, whether by poison, lying in wait, or in an attempt to commit either of the enumerated crimes, in which intention to kill is not a material inquiry, the court must, before sentencing, examine witnesses and determine the degree. The law is imperative, and it is indispensable in the trial of a homicide, that the degree of the crime be ascertained and appear on the record. This is to be done by the jury, where there is a trial, and by the court, where there is a sentence on a confession. It is as essential an element of the verdict as any other fact to be found by it. It is this which ascertains and fixes the penalty to be attached to the crime, and hence it must appear by the record.

Tilghman, C. J., in White v. Commonwealth, 6 Binn. 183, speaking of the form of indictment under the Act of 22d April 1794, said, "It has not been the practice, since the passage of this law, to alter the form of indictments for murder in any respect; and it plainly appears by the act itself, that it was not supposed any alteration would be made. It seems to be taken for granted that it would not always appear on the face of the indictment of what degree the murder was, because the jury are to ascertain the degree by their verdict, or, in case of confession, the court are to ascertain it by the examination of witnesses." Notwithstanding what the Chief Justice said, indictments continued to be generally framed according to common-law precedents, in which was always set forth the kind of instrument and the means of the killing. Since the passage of the Criminal Procedure Act of 31st March 1860, § 20, it is not necessary that the "manner, or the means by which the death of the deceased was caused," should be set forth, but only that it was done "feloniously, wilfully and with malice aforethought." Hence it would seem to be more than ever material that the jury be charged with the responsibility and duty of finding the degree. That it is a material fact to be found is not to be denied or doubted. The statute makes it so, and with it all our decisions accord.

But it is argued that where the facts bring the case within either of the modes of killing declared murder in the first degree, it being the duty of the jury to find a verdict in accordance therewith, a peremptory direction to find that degree...