Appeal, No. 105, March T., 1960, from judgment of Court of Oyer and Terminer of Cambria County, Sept. T., 1958, No. 18, in case of Commonwealth of Pennsylvania v. Eleanora Avis Conklin. Judgment vacated and record remanded.
Lawrence L. Davis, for appellant.
Ferdinand F. Bionaz, District Attorney, with him Robert J. Cassidy, First Assistant District Attorney, and Fremont J. McKenrick, Assistant District Attorney, for Commonwealth, appellee.
Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE COHEN.
This case is ruled by Commonwealth v. Edwards, 394 Pa. 335, 147 A.2d 313 (1959). The defendant, Eleanora Avis Conklin, charged with the felonious homicide of her three year old son, was tried on December 8, 1958, before the Court of Oyer and Terminer of Cambria County. A plea of not guilty was entered, but on December 12, 1958, the jury returned a verdict of guilty of murder in the first degree and fixed the sentence at life imprisonment. Defendant's motion for a new trial and in arrest of judgment was overruled by the Court en banc on November 3, 1959, sentence was entered by the Court a week later and this appeal followed.
The only question raised by the defendant on this appeal is the sufficiency of the charge to the jury.
Since the learned trial judge gave his charge on December 12, 1958, he was unable to refer to the then unavailable opinion in the Edwards case (handed down on January 5, 1959), in which our view in these matters was fully expressed by Justice MUSMANNO. There should no longer be any doubt that in any criminal jury trial conducted in the Commonwealth in which a plea of not guilty is entered by the defendant, the court must adequately instruct the jury on the possible verdict of "not guilty."
The necessity for so instructing the jury was not diminished by the fact that the defendant voluntarily admitted to several witnesses, gave sworn signed statements and later confirmed from the witness stand the details surrounding the killing. Nor was it diminished by the fact that the defendant introduced evidence only to substantiate her two affirmative defenses, insanity at the time of the commission of the crime, and that the defendant was rendered incapable of forming an intent to kill by the voluntary use of drugs. When the accused plead not guilty, she thereby put in issue every single element in the prosecution's case, upon which the prosecution must meet its affirmative burden of proof beyond a reasonable doubt. The district attorney has argued that the defendant never, either before or during the trial, denied the killing. This is in law irrelevant, for it is not the accused who must prove her innocence, but the prosecution who must prove her guilt. If the defendant introduced no evidence whatever, she would still be entitled to a charge on the possibility of a not guilty verdict based on the jury's disbelief of the prosecution's case. We have often stated that a confession of the commission of a crime is not sufficient, in and of itself, to convict. Even though it may obviate the necessity of proving the accused's moral and material participation in whatever happened, it does not obviate the necessity of establishing the material
and legal existence of a crime. Thus, neither the admission of certain facts by the defendant nor her failure to deny the killing serves to relieve the prosecution of its burden of proof. We need not be reminded of the countless situations where persons confess to crimes of which they are innocent, either out of a desire to cover up for the guilty person or because of a psychological urge to do so. It is therefore necessary to adequately remind the jury in the charge that if the prosecution's evidence fails to convince them beyond a reasonable doubt on any essential element of the prosecution's case, they must return a verdict of not guilty. This holds true whether "the evidence of guilt piles as high as Mt. Everest on Matterhorn, even if the District Attorney ...