# Commonwealth v. Joseph

> Supreme Court of Pennsylvania · May 4, 1973 · 451 Pa. 440

URL: https://www.frixlaw.com/law-library/cases/9750098

## Case

- **Full name:** Commonwealth v. Joseph, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** May 4, 1973
- **Citations:** 451 Pa. 440; 304 A.2d 163; 1973 Pa. LEXIS 547
- **Precedential status:** Published
- **Opinion:** Dissent by Mandebino
- **Judges:** Mandebino, Jones, Eagen, O'Brien, Roberts, Pomeroy, Nix, Mander-Ino
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9750098

## Opinion text

Dissenting Opinion by
Mb. Justice Mandebino :
I dissent. There is no exception to the rule that, in a jury trial, all elements of a crime must be found to exist by the jury. A judge cannot take away from the jury consideration of any of the elements of the crime. Murder is the killing of a human being with malice. If the killing occurs without malice, thé crime is not murder, although it may be manslaughter. The jury must, therefore, in all murder cases determine whether the defendant acted with malice. The jury, of course, may be instructed that malice may be inferred, if the jury finds that the defendant engaged in the perpetration of a felony. To tell the jury, however, that they must find one of the elements of murder (malice) as a matter of law is to invade the function of the jury.
The confusion in this area arises from a misreading of the Act of June 24, 1939, P. L. 872, §701, as amended, 18 P.S. 4701. The Act does not define murder but establishes which murders are first degree murders. *451 The Act does not state that all Jdllmgs committed in the perpetration of a felony are first degree murders, but states that all murders committed in the perpetration of a felony are first degree murders. The Act presupposes that it has already been determined that murder has been committed. That question, however, must be determined by the jury and the Act does not state otherwise.
The jury must, therefore, first determine whether the defendant is guilty of murder and then determine whether the defendant is guilty of first degree murder. The judge in this case charged the jury that they were bound to find murder in the first degree if they found that the defendant was guilty of robbery. This took away from the jury a consideration of whether the element of malice, which is necessary for murder, was present.
The only proper charge would be one that instructs the jury that malice is necessary for murder and that they may infer malice from the perpetration of a felony or from any other circumstances. If the jury finds malice and also finds that the defendant was perpetrating a felony, they should find first degree murder. It is not sufficient to charge the jury that a Joining in the perpetration of a felony must be first degree murder. They must find a murder first, and then decide the degree of murder.
The charge in this case skips a crucial link. The jury must find (1) an intentional killing with malice and (2) that the killing was in the perpetration of a felony, and then it may conclude first degree murder. In this case, the first necessary link was taken from the jury as a matter of law and the defendant was thus deprived of a complete jury trial.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9750098. Public record. Not legal advice.