Rhodes v. Commonwealth
| Decision Date | 01 January 1864 |
| Parties | Rhodes versus The Commonwealth. |
| Court | Pennsylvania Supreme Court |
J. W. Comly, J. B. Packer, and S. P. Wolverton, for plaintiff in error.
S. Malich, District Attorney, with whom were William C. Lawson, G. W. Zigler, and W. M. Rockafeller, for the Commonwealth.
The opinion of the court was delivered by
In that part of the charge which is set forth in the third assignment, we think the learned judge fell into manifest error. His language was: The Act of Assembly under which the prosecution was conducted declares 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 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 indicted for murder shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict whether it be murder in the first or second degree; but if such person shall be convicted by confession, the court shall proceed by examination of witnesses to determine the degree of the crime, and to give sentence accordingly."
The statute created a distinction, unknown to the common law, between murder in the first and second degree, and by very precise words made it the exclusive right and duty of the jury to ascertain the degree when the conviction resulted from a trial, and of the court to ascertain it when the conviction should be by confession; yet the judge assumed the province of the jury and ascertained the degree in this instance, though this was a case of conviction by trial and not by confession. Nothing less can be made out of his words, "if you find the defendant guilty, your verdict must state Guilty of murder in the first degree;" was that leaving the degree to the jury to find? Most clearly not. It excluded all chance of deliberation on the degree, and left to them only the question of guilty or not guilty.
It is in vain to argue that the judge was more competent to fix the degree than the jury, or that the circumstances proved the crime to be murder of the first degree, if murder at all; for the statute is imperative that commits the degree to the jury. It was proper for the judge to advise them of the distinction between degrees, to apply the evidence, and to instruct them to which of these degrees it pointed; but to tell them they must find the first degree, was to withdraw the point from the jury and decide it himself.
If the indictment had laid the offence as committed by poison, or lying in wait, or any of the other means enumerated in the statute, there would have been more reason for the direction, though even then we do not say such a direction could be sustained; but the indictment alleged none of the categories of the statute, and simply charged that the defendant did "feloniously, wilfully, and of his malice aforethought, kill and murder Elizabeth Chamberlain." A conviction in the manner and form of such an indictment clearly demanded an ascertainment of the degree by the jury. It was argued that it would have been error for the court to instruct the jury upon the evidence that the offence was murder in the second degree. Undoubtedly it would have been, and it was not error to instruct them that it was murder in the first degree, but it is one thing to instruct a jury upon the legal effect of evidence, and quite another thing to compel them to find a fact in a particular way. And it is to compel a jury, when, instead of placing the alternative degrees of murder before them, the judge decides that they must find the first degree or acquit. Under proper instructions from the bench it is not only the right of the jury to ascertain the degree, but it is the right of the accused to have it ascertained by them, and a judge takes away one of the statutory rights of the accused when he undertakes to ascertain it.
No doubt cases of murder of the first degree have been found in the second, but this must have been anticipated when the statute was...
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Commonwealth v. Moore
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...362 Pa. 427, 66 A.2d 825; Commonwealth v. Schmidt, 423 Pa. 432, 224 A.2d 625; Commonwealth v. Meas, 415 Pa. 41, 202 A.2d 74; Rhodes v. Commonwealth, 48 Pa. 396; Lane v. Commonwealth, 59 Pa. 371; see also, Act of June 24, 1939, P.L. 872, 18 P.S. § 4701. Relying thereon, defendant-appellant c......
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