Appeal, No. 20, May T., 1960, from judgment of Court of Oyer and Terminer of Dauphin County, Sept. T., 1958, No. 1, in case of Commonwealth of Pennsylvania v. Leola Moore. Judgment affirmed. Indictment charging defendant with murder. Before HERMAN, J. Verdict of voluntary manslaughter returned, defendant's motion for new trial and in arrest of judgment refused, and judgment of sentence entered. Defendant appealed.
John J. Krafsig, Jr., for appellant.
John A. Roe, Assistant District Attorney, with him H. F. Dowling, District Attorney, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
The defendant, Leola Moore, was found guilty of voluntary manslaughter by a jury in the Court of
Oyer and Terminer of Dauphin County and by that court sentenced to pay a fine of $5. and to be committed to the State Industrial Home for Women for an indeterminate term. From that judgment of sentence this appeal was taken.
Isaac David Moore and Leola Moore, husband and wife, lived at 1608 Wallace Street, Harrisburg, having come to Harrisburg from South Carolina several years prior to the incident which gave rise to this criminal prosecution. On the mid-afternoon of July 5, 1958, in his home, Isaac Moore received at the hands of Leola Moore, the defendant, a wound which resulted in his death.*fn1
At approximately 3:15 p.m. on that date the deceased entered his home and, finding the defendant in the dining room, inquired why she had not prepared anything to eat; the defendant explained that she had cleaned the kitchen floor and was waiting for it to dry but the deceased, instead of accepting this explanation, cursed defendant. The defendant went into the kitchen followed by the deceased. Defendant picked up a butcher knife, 11 1/8 inches long, and returned to the dining room. The deceased from the kitchen threw a portable radio at defendant which, according to defendant, struck her and, according to the Commonwealth, landed near her feet. Defendant then started toward the living room and the deceased started following her. Defendant turned, raised her arm and stabbed the deceased inflicting a wound which caused his death within an hour. Although unarmed as he followed defendant, the deceased was saying something and in an angry mood. There was no evidence of any attempt
on defendant's part to run away from deceased, although there was evidence on the part of the Commonwealth that she could have left the house by the back door before her husband followed her to the kitchen or by the front door after deceased had thrown the radio at her.
Dr. Lippard described the character of the wound inflicted: "Yes, the wound, as I say, entered the soft parts of shoulder. It went behind the main bone of the arm. It vented, of course, across the arm pit and then entered the chest between the fourth and fifth ribs. It then went across the chest and cut open the sac which covers the heart. It then terminated at one of the major arteries which leave the heart, the pulmonary artery." Although the knife blade was 11 1/8 inches long the wound to the pulmonary artery was somewhat longer from which the inference may be drawn that the knife was wielded with force.
Defendant contends: (1) the trial court erred in overruling her demurrer at the close of the Commonwealth's case and thus her motion in arrest of judgment should be granted; (2) the trial court was in error in allowing the jurors to deliberate for eleven hours - 7:08 p.m. to 6:10 a.m. - without making any provision for them to rest and sleep; (3) the trial court erred in permitting the Commonwealth, in rebuttal, to present the testimony of a witness concerning a threat alleged to have been made by defendant four months prior to the homicide; (4) the verdict of the jury was against the weight of the evidence.
Defendant's first contention, i.e., that her motion in arrest of judgment should be granted, is premised upon the alleged failure of the Commonwealth to prove that the killing of deceased was intentional. In considering this contention the defendant would have us review the refusal of the court below to sustain her demurrer which we cannot do: Commonwealth v.
for this Court in Commonwealth v. Samuel Jones, 355 Pa. 522, 526, 50 A.2d 317, stated: "It is in respect of the alleged intent to take life that the appellant ascribes failure to the Commonwealth's proofs in the instant case, apparently overlooking the fact that such intent, being subjective, is often unsusceptible of direct proof but must be found in the implications of objective manifestations, such as the character of the weapon used by the slayer. Not infrequently, therefore, specific intent to take life is shown by proof of the offender's use of a deadly weapon, for while an intention to kill may be shown by the defendant's expressed words or declarations or other conduct, such intent may be just as effectively inferred from the deliberate use of a deadly weapon upon a vital part for a manifest purpose: [citing cases]." See also: Commonwealth v. Nelson, 396 Pa. 359, 152 A.2d 913; Commonwealth v. Ballem, 386 Pa. 20, 123 A.2d 728; Commonwealth v. Vassar, 370 Pa. 551, 561, 88 A.2d 725; Commonwealth v. Wucherer, 351 Pa. 305, 312, 41 A.2d 574; Commonwealth v. Kelly, 333 Pa. 280, 4 A.2d 805; Commonwealth v. Drum, 58 Pa. 9. Apparently conceding that the knife was a "deadly weapon," defendant argues that the knife was not used on a "vital part" of deceased's body and, therefore, the inference of a specific intent to kill did not arise. In this connection it is argued that Dr. Lippard changed his testimony in respect to whether or not the wound was inflicted on a "vital part" of the deceased's body. On direct examination Dr. Lippard testified: "Q. Now Doctor, there has been some reference in remarks in this case as to vital parts of the body. Would you determine from your experience whether or not you regard the area wounded as a vital part of the body? A. Yes, definitely a most vital part of the body." (Emphasis supplied). On cross-examination the doctor testified: "Q. Now, do you consider the fleshy part of the arm behind the bone as a vital part
of the body? A. No." It is obvious that the doctor did not change his testimony and that in his opinion the area wounded was a "vital part" of deceased's body. The court below in its opinion well covered this situation: "The fact that in reaching this most vital part of the body the knife passed through the flesh of the upper arm is of no moment. A weapon may be used in such a way that death is improbable; however, we must consider not only the nature of the weapon, but also the manner in which it is used and all the attending circumstances: Commonwealth v. Kluska, 333 Pa. 65 (1939). In the instant case the weapon is a butcher knife 11 inches long, secured and used by the defendant against her husband who was unarmed and thrust with such force and in such a manner that it caused a stabbing wound longer than its blade in a diagonal path into the heart." No more vital area exists in the human body than the heart area; it was in this area that defendant wounded her husband and from the use of the ...