Commonwealth v. Karmendi , 328 Pa. 321 ( 1937 )

I concur in the majority opinion in its overruling of all the assignments except the assignment which was filed belatedly and "nunc pro tunc," and which is based upon the denial of a change of venue. In my judgment, this assignment is also devoid ofmerit and should be overruled. In appellant's statement of "Questions Involved," in the assignments of error filed before this case was argued, and in the oral argument before this court, nothing was said by anybody about a change of venue. Only in appellant's typewritten "supplemental argument" is there any reference to a change of venue and this states that the assignment of error based upon a denial of a change of venue had been filed later. Apparently this alleged error was an afterthought.

The question to which this protracted legal controversy has been addressed is: "Did the Commonwealth offer evidence sufficient to prove, beyond a reasonable doubt, Margaret Karmendi guilty of murder in the first degree?" I would not vote to sustain a conviction unless in my mind the proof of guilt was legally and morally adequate beyond any reasonable doubt.

I wish to record my reasons for the belief that the verdict rendered was based on evidence measuring up to the high standard the law justly requires.

Wigmore in his second edition of Evidence, Vol. 1, sec. 27, aptly says: "The conclusions and tests of everyday experience must constantly control the standards of legal logic." Professor Thayer in his "Preliminary Treatise on Evidence at the Common Law," says (p. 272): "What is called the 'legal mind' is still the human mind, and it must reason according to the law of its constitution."

I cannot see how the human mind, applying "the tests of everyday experience," can fail to reach in this case the conclusion that twenty-four men and women as jurors in two successive trials reached, to wit, that the defendant is guilty of the murder of her own child. The probative value of conduct evidence has always been recognized and it finds expression in the universal proverb that "actions speak louder than words." Solomon's reputation as a wise man and judge is based to a considerable extent on the fact that he determined which of two women was the mother of a certain child by applying a conduct test.¹

Dramatists plumbing the depths of human psychology have portrayed conduct as revelatory of guilt. One of the greatest of them declared: "Unnatural deeds do breed unnatural actions; infected minds to their deaf pillows will discharge their secrets."²

It is unthinkable that Lockard would have elected to kill the child in the mother's presence, unless she was a partner in hiscriminal purpose. It is unthinkable for these reasons. If he was friendly with her (as he unquestionably was) he would not, except upon the hypothesis stated, have been diabolical enough to torture her by making her witness her child's slaying. Whether friendly or unfriendly with her, he would not, except upon the hypothesis stated, have been willing to incur the risk of her disclosure of the murder. Any normal mother having witnessed her child's slaying to which she was not a party, would avail herself of the first opportunity to accuse the slayer and have him apprehended. Mrs. Karmendi was obviously a party to the slaying of her child, her motive being to save herself from the observations and reports of the child to its father, of incidents which Mrs. Karmendi preferred to have undisclosed. That the child was already "telling things" to his father was proved. If Lockard alone had desired to kill the child, he alone would doubtless have taken him for a walk and killed him and then attributed the death to the same kind of an "accident" both he and Mrs. Karmendi conjured up here.

The defendant's conduct at and after the killing of this little boy is reconcilable with no hypothesis except one involving her as particeps criminis. This inculpatory conduct may be summarized as follows:

1. When she saw Lockard striking her own flesh and blood with a heavy railroad spike, she, instead of rushing to the little child's defense as even an animal would do in defense of its young, ran across the road.

2. Instead of then going back to aid the child or summoning or crying out for an officer or other person, she merely inquired of Lockard: "Is the boy dead."

3. Upon being informed by Lockard that the child was "still breathing" she did not attempt to minister to it either then or a little later when it was in the Iorio home.

4. When the child was shortly afterwards taken to the hospital from the Iorio home, where it was first carried by Lockard, with the lying information that "the baby got hurt by an automobile," the defendant did not accompany it.

5. When officers later interrogated Lockard and the defendant in the Iorio home, both she and he insisted that the child had been struck by an automobile, she describing with much detail just how the "accident" happened.

6. She repeated the same false story after she and Lockard had separated and when she was therefore not under any physical duress of his.

7. She later repeated the same false story to her husband and on the next day to other persons, Lockard not being present on either occasion.

8. In the kitchen of the Iorio home, within a short time after she had seen Lockard murder her child, she and Lockard "put their arms around each other."

9. She gave a complete and accurate description of the spike with which the killing was done, thus revealing familiarity with the spike before it was used by Lockard to kill the child, for the spike was, after the murder, thrown away.

10. When Officer Flynn told her, "I know who killed your boy," she made no inquiry as to the killer's identity.

11. When on the evening after the murder she and Lockard were together in the district attorney's office, and Lockard accused her of killing the child, she merely "sneered at him" and a little later said: "The automobile did it."

12. The minute details of Mrs. Karmendi's fabricated story of the killing indicate that it was fabricated in advance of the killing. No false report is replete with minute details unless considerable time was given to its preparation. It is a psychological fact that the inventive powers of the human mind operate much more slowly than the power of recollection. When Mrs. Karmendi narrated the details of her fabrication, she was palpably telling a story that had been invented and rehearsed in advance by herself and Lockard.

What this woman did and what she said, her coolness and her callousness, after witnessing the murder of her child, if not actually committing that murder herself, is all "inexplicable on any reasonable theory other than that" she was a party to this murder.³ Evidence of conduct which was obviously the outward manifestation of a guilty secret, has in the scales of justice often been of decisive weight against an accused. InCom. v. Westwood, 324 Pa. 289, 301, 188 A. 304, we said of such conduct: "The Commonwealth plausibly argued that the defendant's conduct after the homicide betrayed a guilty conscience. His words and acts were not the normal words and acts of an innocent husband suddenly apprised of the startling fact that his wife had been foully murdered. Rather they bespoke a mind already possessed of a knowledge of the crime, a mind weighted with its guilty secret and already planning an exculpatory alibi."

In the case of Com. v. Delfino, 259 Pa. 272, 102 A. 949, the record shows that one of the most important pieces of evidence on which the Commonwealth relied for the defendant's conviction of murder in the first degree, was the fact that when the defendant, who was standing in a store within thirty minutes after the homicide, committed a half mile away, and before any one had informed him of the killing, was told by an officer "come with me," he (the defendant), instead of saying: "What do you want me for," replied, "Search me; I have no gun." He had shot his victim, and a moment later had placed the murder gun on a coal train which he had expected to move quickly to a distant point (but which in fact did not do so). He then made his way to the store where the officer found him. At the trial he protested his innocence but it was persuasively contended by the Commonwealth that the remark he blurted out when confronted by the officer indicated consciousness of guilt on his part. There was also other evidence in the case but this became somewhat equivocal owing to the fact that there were two men in the immediate vicinity of the homicide whose names were "Dominick Delfino." The consciousness of guilt betrayed by the defendant when the officer confronted him, "tipped the scales" against him and he was convicted and executed (confessing his guilt two days before his execution).

Wigmore on Evidence, 2nd ed., Vol. 1, sec. 173, says: "The commission of a crime leaves usually upon the consciousness a moral impression which is characteristic. . . . Its evidential value has never been doubted. . . . There are two processes of inferences involved, — from conduct to consciousness of guilt, and then from consciousness of guilt to the guilty deed." Section 273: ". . . No one doubts that the state of mind which we call 'guilty consciousness' is perhaps the strongest evidence that the person is indeed the guilty doer."

In Ex parte Jefferies, 124 P. 924, the Criminal Court of Appeals of Oklahoma said in an able opinion: "Law . . . has never required mathematical certainty. . . . The only possible standard of action for the enforcement of law is that we must believe to the same degree of moral certainty that we act upon in matters of the gravest concern to ourselves, and, when we so believe and act, we meet the full measure of our duty. . . . A trifling circumstance — the fall of an apple — has proved to the satisfaction of philosophers the great laws of gravitation which control the motions of the universe. . . . If we turn from the world without, to the great mechanism within us, we see again that no rational man pauses for one instant to doubt the force of circumstantial testimony." In Commonwealth v.Twitchell, 1st Brewster 551, 574, the Court of Common Pleas of the First Judicial District of Pennsylvania, in an opinion by Judge F. CARROLL BREWSTER, quoted with approval the following from Judge LUDLOW in Com. v. Miller, 4 Phila. Rep. 199: "Crimes are often committed in secret, and, but for the fact that circumstantial evidence may be produced, would go altogether unpunished. . . . Such are the laws of nature regulating cause and effect that a body of facts may be presented so linked together as to produce a firm belief of the fact to be proven." Judge BREWSTER then said: "It follows, then, that we cannot close our eyes or lock up our reason in this or in any other case because the evidence is circumstantial." In Hickory v.U.S., 151 U.S. 303, the Supreme Court of the United States, in an opinion by Chief Justice FULLER, dismissed without merit an exception to the instruction of the trial judge that "circumstantial evidence simply means that you take one fact that has been seen, that is produced before you by evidence, and from that fact you reason to a conclusion."

I think what Chief Justice GIBSON said in Com. v. Harman,4 Pa. 269, 272, is particularly applicable to this case: "The machinery of criminal justice, like every other production of man, is necessarily imperfect . . . But the law exacts a conviction wherever there is legal evidence to show the prisoner's guilt beyond a reasonable doubt; and circumstantial evidence is legal evidence."

I find in this record no grounds whatever for a change of venue and appellant's counsel apparently never found any, as is evidenced by what I called attention to in the first paragraph of this opinion.

It has long been established by decisions of this court⁴ that the granting of a change of venue is a matter of discretion with the court below, and there is not a particle of evidence in this record indicating that the refusal of a change of venue was anything but a sound exercise of that discretion. Every juror who was accepted in this case qualified as possessing an "open mind" on the question of the defendant's guilt or innocence and as being able to live up to his or her oath to "well and truly try" the accused, basing a verdict solely on the law and the evidence. As Judge PATTERSON said in his opinion: "At both trials the defendant was satisfied in the selection of the jury without exhausting her peremptory rights of challenge."

If a change of venue is to be granted as a matter of right to every one accused of murder every time newspapers publish before trial highly inflammatory accounts of the crime, with many shocking details, most murderers will be tried away from the county where their crimes have been committed. Such a rule would have sent Guiteau out of the District of Columbia when tried for President Garfield's murder; Czolgosz out of Erie County, N.Y., when tried for President McKinley's murder; James Westwood out of Allegheny County when tried for his wife's murder; Ruth Snyder and Judd Gray out of Nassau County, N.Y., when tried for the murder of Mrs. Snyder's husband; Anna Hahn out of Cincinnati when tried recently for "wholesale poisoning" in that city; and dozens of murderers out of New York City for trial in recent years (as, for example, the murderer of Mrs. Tittering), whose crimes were publicized in both pictures and huge headlines and shocking news stories before their trials were held. In Com. v. Buccieri, 153 Pa. 535,546, 26 A. 228, this court, speaking through Justice DEAN, aptly said: "To secure a change of venue [under the Act of 1875], it must be made to appear to the satisfaction of the court [below] that because of 'undue excitement,' or from 'great prejudice' a fair trial cannot be had. The intensity of the excitement and the extent of the prejudice, if either or both exist, are peculiarly within the sound judgment of the court where the crime is committed. . . . Indignation, because of the cruelty of the deed, there doubtless was; it would be strange if such were not the case in a law-abiding community; but there is nothing which convinces us of the existence of such passion or prejudice as would prevent the twelve 'sober, intelligent, and judicious' jurors who were sworn to try the issue from rendering a true verdict on the evidence." In Com.v. Smith, 185 Pa. 553, 568, 40 A. 73, this court, in an opinion by Justice MITCHELL denied an application for the "removal of a case," the application being based on allegations that highly inflammatory newspaper accounts had "a prejudicial effect on the prisoner." Chief Justice PAXSON said, speaking for this court in Com. v. Cleary, 148 Pa. 26, 23 A. 1110: "It would seriously disturb the administration of the criminal law, if, by merely filing an affidavit, a defendant could have a change of venue as a matter of right."

I am unable to find in this record any adequate basis for the following statement which is contained in the majority opinion, to wit: "The peoples' minds were inflamed when the press carried the horrid details of the crime and particularly so when the conduct of this defendant was related. One might remark, 'any jury in Blair County will send that woman to the electric chair.' That is not the proper spirit for a jury." If there is any proof that the jurors who tried and convicted Mrs. Karmendi exhibited the improper "spirit" for which the majority opinion apparently chides them, it has escaped my painstaking reading of this entire record. To hold that this defendant is entitledas a matter of right to a change of venue upon such an unsupported application as was made in this case is to reverseCom. v. Cleary, supra, and a long line of similar decisions of this court going back for at least a half century.

I think the fact that out of the 39 prospective jurors called in this case only 11 were disqualified by previously formed fixed opinions and out of 41 talesmen summoned, only 13 were similarly disqualified, or a total of 24 jurors with fixed opinions out of 80 summoned for jury service (i. e., only 30 per cent), proves conclusively that there was no universal or even widespread prejudice in Blair County against this defendant. But the even more important facts are that no one got on the jury with a preconceived fixed opinion as to Mrs. Karmendi's guilt or innocence and no one got on the jury as to whom the defendant or her attorneys had even the slightestsuspicion as to their fairness and open-mindedness, for if defendant or her counsel had had any such suspicion, they would have used the peremptory challenges at all times available to them, the jury box having been filled before these challengeswere exhausted. Judge PATTERSON in his opinion refusing a new trial said: "Both juries [which respectively found this defendant guilty after two successive trials] consisted of men and women of intelligent judgment and minds free from prejudice." As trial judge he was in a better position than anyone else to know this, and appellant and her counsel only weakly and hesitatingly attempt to controvert his statement.

I would affirm the judgment of the court below. I am convinced that this defendant received a fair and impartial trial and that her guilt was legally established.

¹ The report as found in the 1st Book of Kings, III, 16, sets forth that two women appeared before King Solomon, each with a plausible tale to the effect that the other's child had died and that the baby which survived was hers: "Then said the king: 'The one saith: "This is my son that liveth, and thy son is the dead"; and the other saith, "Nay; but thy son is the dead, and my son is the living." ' And the king said, 'Bring me a sword.' And they brought a sword before the king. And the king said, 'Divide the living child in two, and give half to the one and half to the other.' Then spake the woman whose the living child was unto the king . . . and said, 'O my lord, give her the living child, and in no wise slay it.' But the other said, 'Let it be neither mine nor thine, but divide it.' Then the king said, 'Give her the living child, and in no wise slay it: she is the mother thereof. And all Israel heard of the judgment . . . for they saw that the wisdom of God was in him, to do judgment."

² Able commentators on Shakespeare have pointed out that certain remarks made by Lady Macbeth, who was privy to Duncan's murder but who feigned innocence, really amounted to a revelation of guilt. A short time after the murder and when the alarm bell was rung, she appeared upon the scene and asked what had happened, though in fact she, as a party to the murder of Duncan, well knew what had happened. At this moment Banquo comes upon the scene and MacDuff cries out to him: "Our royal master's murdered." Lady Macbeth then cries out: "What! In ourhouse!" A commentator says of this: "Had she been innocent, her horror of the crime would have made her forget the place. Banquo sees through this and sees through her. Her expression was a light by which he saw her guilt — and he answers: 'Too cruel anywhere.' " In other words, he reproached her by saying in effect: "This murder of Duncan in which you had a part was dastardy regardless of its place of commission."

³ The phrase in quotation marks is taken from the opinion of this court in Com. v. Johnson, 162 Pa. 63, 68, 29 A. 280, in sustaining a conviction of murder in the first degree on circumstantial evidence no more persuasive than this record contains.

⁴ Com. v. Allen (1890), 135 Pa. 483, 19 A. 957; Com. v. Cleary (1892), 148 Pa. 26, 23 A. 1110; Com. v. Buccieri (1893),153 Pa. 535, 26 A. 228; Com. v. March (1915), 248 Pa. 434,94 A. 142; Com. v. White (1922), 271 Pa. 584, 115 A. 870; Com. v.Riggs (1934), 313 Pa. 457, 169 A. 896.