Lutz v. The Commonwealth
| Decision Date | 01 January 1857 |
| Citation | 29 Pa. 441 |
| Parties | Lutz versus The Commonwealth. |
| Court | Pennsylvania Supreme Court |
It is necessary to allege in fact that the party wounded died of that wound, thus, de qua quidem plaga mortali idem J. S. languebat & languidus vixit usque talem diem anno supradicto, quo quidem die idem J. S. de plaga mortali prædicta obiit: 2 Hale 186, also note 7 to pages 187-8. An indictment ought to expressly show that the party died of the hurt specially set forth; and it hath been resolved that an indictment setting forth that the defendant choked the deceased, qua suffocatione obiit, instead of de qua suffocatione, &c., is bad: 2 Hawk. Pl. C. 251; 5 Bac. Abr. 70. It must be averred that the wound or bruise was mortal, and finally, the adequacy of the means to produce death must be further shown by a direct averment that the party died of the stroke, and this cannot be supplied by any implication or intendment whatsoever: 1 Stark. Cr. Pl. 93. In all cases the death by the means stated must be positively alleged, and cannot be taken by implication, and therefore when the means of death is alleged to be by any stroke, the indictment should proceed to aver that the prisoner thereby gave to the deceased a mortal wound, whereof he died: 1 East P. C. 342.
It is necessary, in all cases, that the death by the means stated should be positively alleged, for it cannot be taken by implication: 2 Arch. Cr. P. 207-2-3, (note); 3 Chit. Cr. L. 736; 1 Leach 112; Kely. 125; 4 Brit. Cr. Ca. 298.
Is the want of this averment cured by verdict? The authorities in this country are uniform to the contrary. The rule is broadly laid down in 1 Ch. Cr. L. 661-2. None of the statutes of jeofails extend to criminal cases: 1 Stark. Cr. Pl. 361; 2 Hawk. 336; 20 Pick. 361; Com. v. Morse, 2 Mass. 130; Com. v. Henesey, 1 Mass. 137; Sharff v. Com., 2 Binn. 516; Com. v. Peas, 2 Gratt. 629. This has never been doubted until the late case of The Queen v. Waters, Dennison's Cr. Ca. 356. That has been in consequence of the latitude given by the stat. 7 Geo. IV. clause 6: see Wh. C. L. 216.
Nor is the defect cured by the concluding words "kill and murder:" Honeyman's Case, 2 Dall. 228; 5 Bac. Ab. 70.
Nor can the languishing clause in this indictment be stricken out as surplusage: Com. v. Bell, Ad. 171; Wh. Prec. of Ind., last ed., 114, n. 8.
Collier, District Attorney, for the Commonwealth.
This indictment is not artistically expressed. Its grammatical construction is open to criticism, and it trenches hard on those rules of certainty which obtain in criminal pleading.
Still, we feel it to be our duty to sustain it, and this, we think, can be done without violence to either language or law.
A stroke with a knife, and a mortal wound, are well charged, but it is objected that the indictment does not aver that the death ensued as a consequence of that wound. O'Leary might have died, it is said, of other violence, or of a supervening disease.
The rule undoubtedly is, that an indictment for murder must expressly show that the party died of the hurt specially described and set forth; but in construing indictments we are not, whilst avoiding intendments against the life of the prisoner, to fall into such extreme astutia as shall ignore the force and meaning of language.
This indictment is one long and complex sentence, from the beginning of the charging part to the end. After describing the mortal wound, it alleges, "of which mortal wound" he, the said Richard O'Leary, languished from the 27th to the 28th of June, and languishing did live, and it immediately adds, "on which said twenty-eighth day of June, in the year aforesaid, the said Richard O'Leary in the county aforesaid died."
Now if these words, "of which mortal wound," be carried down and connected with the averment of the death on the 28th, the objection vanishes. The averment would then be as distinct that he died of the mortal wound as it is that he languished of it. And why should not these words be carried down? They are in the same sentence, are separated from the averment of death only by a semicolon, and lack nothing but the conjunction and between the words "live" and "on" to make the sentence absolutely perfect in this regard.
...
To continue reading
Request your trial
-
State v. Inlow
...is not entirely specific and certain. A charge in the same language was held sufficient by the Supreme Court of Pennsylvania in Lutz v. Commonwealth, 29 Pa. 441. Upon the other hand, a charge like the one here in was held uncertain by the Supreme Court of Montana in State v. Keerl, 29 Mont.......
-
Territory v. Lobato.
...from that used in the one now before the court. On the other hand, the Attorney General has called our attention to the case of Lutz v. Commonwealth, 29 Pa. 441, where the charge that death resulted from the wounds inflicted was not nearly so positive or direct as in the indictment in this ......
-
Territory v. Lobato
...from that used in the one now before the court. On the other hand, the Attorney General has called our attention to the case of Lutz v. Commonwealth, 29 Pa. 441, the charge that death resulted from the wounds inflicted was not nearly so positive or direct as in the indictment in this case, ......
-
Commonwealth v. White
...the averments of matters obviously arising from implication is unnecessary: Sherban v. Com., 8 Watts 212; Edge v. Com., 7 Pa. 275; Lutz v. Com., 29 Pa. 441. the indictment, in the case before us, might not have been framed with greater precision and certainty, on the points embraced in the ......