Appeal, No. 46, Jan. T., 1962, from judgment of sentence of Court of Oyer and Terminer of Northampton County, Feb. T., 1960, No. 106, in case of Commonwealth of Pennsylvania v. Lewis Walter Tyrrell. Judgment affirmed.
William C. Cassebaum, with him Edward J. Danser, for appellant.
Andrew L. Herster, Jr., District Attorney, with him Charles H. Spaziani, Assistant District Attorney, for Commonwealth, appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.
OPINION BY MR. CHIEF JUSTICE BELL.
Defendant entered a plea of guilty to murder and the Court (Judges PALMER and WOODRING), after hearing all the evidence, fixed the crime as murder in the first degree and sentenced defendant to life imprisonment. Defendant contends he had no intent to kill his wife and therefore he was guilty only of murder in the second degree. Because this is a murder case, we shall review the evidence and the applicable principles of law at some length.
Defendant admitted that on the morning of March 7, 1960, he shot and killed his wife in their living room with a 20-gauge shotgun. The shot (pellets) struck the victim on the upper front portion of her chest, tore away the pulmonary veins and punctured the left lung. The pathologist testified that Mrs. Tyrrell died within sixty seconds or less after being shot.
The Penal Code of 1939*fn1 provides: "Offenses Against the Person. Section 701. Murder of the First and Second Degree. - All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing,... shall be murder in the first degree. All other kinds of murder shall be murder in the second degree."
The distinguishing criterion or hallmark of murder is legal malice, express or implied. Malice is an absolutely essential ingredient of murder. Commonwealth v. Bolish, 381 Pa. 500, 510, 113 A.2d 464; Commonwealth v. Dorazio, 365 Pa. 291, 74 A.2d 125; Commonwealth v. Malone, 354 Pa. 180, 47 A.2d 445. The essential difference in a nonfelony murder-killing between murder in the first degree and murder in the second degree is that murder in the first degree requires
a specific intent to take the life of another human being: Commonwealth v. Ballem, 386 Pa. 20, 123 A.2d 728; Commonwealth v. Dorazio, 365 Pa., supra; Commonwealth v. Malone, 354 Pa., supra; Commonwealth v. Chapman, 359 Pa. 164 58 A.2d 433; Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317; Commonwealth v. Iacobino, 319 Pa. 65, 178 A. 823.
In Commonwealth v. Chapman, supra, the Court said: "A plea of guilty to the charge of murder is not a plea of guilty in the first degree... The burden is upon the Commonwealth to establish the essential elements of a higher degree of crime, - the specific intent to take human life," rests upon the Commonwealth. See to the same effect: Commonwealth ex rel. Dandy v. Banmiller, 397 Pa. 312, 155 A.2d 197; Commonwealth v. Jones, 355 Pa., supra; Commonwealth v. Iacobino, 319 Pa., supra.
Did the Commonwealth prove beyond a reasonable doubt all the essential elements of first degree murder? We quote with approval the following summary of the testimony from the Opinion of the Court below:
"Saturday, March 5, 1960,... defendant called at the home of Thurston Miller and asked to borrow a shotgun, which request was refused. The next day, March 6, defendant asked Mr. Miller for a 20-gauge shell with No. 6 shot. Defendant said that he was collecting shells and wanted this one for his collection. Mr. Miller gave one shell to defendant. On March 7, the day of the fatal shooting, at 9:30 a.m., Miller was present in Lillian Dickey's home when defendant borrowed a 20-gauge shotgun. Defendant said, 'I want to shoot a red squirrel.'
"Marie Weston, who lived in an apartment in the Blanche Tyrrell house, testified that on Sunday, March 6, a 'heavy' argument took place between defendant and Blanche, defendant used vile language toward his wife, became furious and threw a cup and ...