McGinnis v. Commonwealth

• Decision Date: 25 May 1883
• Citation: 102 Pa. 66
• Parties: McGinnis <I>versus</I> The Commonwealth.
• Court: Pennsylvania Supreme Court

102 Pa. 66

McGinnis versus The Commonwealth.

Supreme Court of Pennsylvania.

January 8, 1883.

May 25, 1883.

January 8th 1883.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

ERROR to the Court of Oyer and Terminer and General Jail Delivery for the county of Philadelphia: Of January Term 1882, No. 410.

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Joseph De F. Junkin and Hampton L. Carson, for the plaintiff in error.—Prior to the Constitution of 1874, the Supreme Court could not review the exercise of discretion by the court below in granting or refusing a new trial. Their power of review, on a special allocatur, was confined to matters occurring at the trial, formally excepted to, noted and filed of record: Act of November 6th 1856, re-enacted in Criminal Code, 1860, sec. 60, Purd. Dig. 389; Fife v. Commonwealth, 5 Casey 429. But we contend that this was changed by section 24 of art. V. of the Constitution of 1874, which reads: "In all cases of felonious homicide . . . the accused, after conviction and sentence, may remove the indictment, record, and all proceedings, to the Supreme Court for review." The same language is used in the Act of May 19th 1874, P. L. 219, passed in pursuance of the constitutional provision. This language has not been construed heretofore by this court. We insist that in homicide cases where the question is only one of the degree of murder, no man shall be put to death, under a verdict of murder in the first degree, until, if the prisoner so elect, the Supreme Court has "reviewed all the proceedings" — including the refusal of the court below to grant a new trial — in order to determine, as matter of fact as well as matter of law, whether all the evidence warrants a conviction of murder in the first degree. We therefore invite the attention of this court to the reasons for a new trial presented to the court below, including the after-discovered evidence, taken in connection with the evidence adduced on the trial.

The learned judge erred in that part of his charge, assigned for error, wherein, in connection with the circumstances of this case, he instructed the jury that there must be at the time of the assault "a willful, deliberate and premeditated intent to kill some one — the person need not be designated." He should have instructed them that whatever may have been the prisoner's intent to kill his wife, whom he did not kill, it was necessary, before convicting him of murder in the first degree, for killing Mrs. Read, to find a distinct and independent deliberate and premeditated intent to take her life. The judge was probably misled into a wrong application of the common law doctrine, that "where A., with intent to kill C., shoots at C. and kills B," he is guilty of murder. This was not that case, but a separate and independent assault.

Under the evidence as to the extent of the prisoner's intoxication at and shortly before the killing, the verdict of murder in the first degree was not warranted. Where a man is so under the influence of liquor as to render him unable to judge of his acts or their consequences — unable to form a willful, premeditated and deliberate design to kill — he cannot be convicted of murder in the first degree. On this point, this case is ruled by Jones v. Commonwealth, 25 P. F. S. 403, 408, and Keenan v. Commonwealth, 8 Wr. 57. The words of AGNEW, J., in the former case, at. p. 410, fit this case: "It seems to us a matter of great doubt whether his frame of mind was such that he was capable of deliberation and premeditation; it appears to have been rather the sudden impulse of a disturbed mind, led away from reason and judgment by dwelling upon the conduct of his wife, influenced by his continued state of excitement."

George S. Graham, district attorney, for the Commonwealth. —The provision of the Constitution of 1874 was not intended to convert the Supreme Court, when "reviewing" the record and proceedings in a case like this, into a jury. The evidence comes here, not for the purpose of reviewing the findings of fact, but to enable the court to determine whether the elements of murder in the first degree exist so as to warrant, as matter of law, such a verdict: McManus v. Commonwealth, 10 Norris 66 (decided in 1879). Hypercriticism fails to show error in the charge of the court below.

Chief Justice MERCUR delivered the opinion of the court, May 25th 1883.

The fourteen specifications of error assigned, were properly argued by the counsel of the plaintiff in error under three general heads. The first is that the evidence did not warrant a conviction of murder in the first degree.

Section 74 of the Act of 31st March 1860, inter alia, declares "all murder which shall be perpetrated by means of poison or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed murder of the first degree."

The learned judge very clearly instructed the jury as to the...