Commonwealth v. Ladd

¶1Opinion by

¶2Appellant defendant ivas indicted in two bills, one for murder and one for manslaughter. Both indictments allege that the victim of the assault was struck on September 21, 1958, and died of it on November 1, 1959. He moved to quash the indictments for the reason that it is the common law of Pennsylvania that no one is responsible for a killing where death ensues beyond a year and a day after the stroke. The court below overruled the motions and defendant appealed. Whether the year and a day rule is and still should be current among us is the single question.

¶3This court has not decided it before.

¶4The only Pennsylvania authority is Commonwealth v. Evaul, 5 Pa. D. & C. 105 (1924), when Judge Gordon assumed that the rule existed in Pennsylvania in cases of felonious homicide but refused to extend it to the misdemeanor of involuntary manslaughter, which was the case he had before him. However, he mentioned the existence of confusion over the nature of the rule and cited Heydon’s Case, 4 Coke’s Beports 41, where the time was held to run from the death and not from the stroke.

¶5In the instant case the court below also felt that as late as 1736, when Sir Matthew Hale’s “History of the Pleas of the Crown” was published, there was disagreement among common law scholars over the nature of the rule and the time from which it ran.

¶6We are of course concerned with the date of May 14, 1776, when such of the common and statutory law of England as had theretofore been in force in the province of Pennsylvania became the law of the Commonwealth by the Act of January 28, 1777, 1 Sm. L. 429, §2; 46 PS §152.

¶7*167At common law there were three ways oí dealing with murder and manslaughter. One was by indictment at the suit of the King, and this became in England and the United States what we recognize as public prosecution. The second was by an appeal of death, which was a private and vindictive process by an interested party and which grew out of the old Germanic custom of “weregild”, or compensation for the death. The third was by inquisition against deodands, which is of no present interest because it involved the forfeiture of personal chattels that had caused death.

¶8Blackstone defines murder in Chapter 14, Book XV, of the Commentaries (1769), at page 195, and gives the year and a day rule, timed from the stroke in prosecutions for murder, at page 197. lie then discusses prosecutions and appeals in Chapter 23, Book IV, pp. 299-312, and at page 311 shows that by the Statute of Gloucestei1, 6 Edw. 1, c. 9 (1278), “all appeals of death must be sued within a year and a day after the completion of the felony by the death of the party.” Appeals of death, not prosecution for murder, were involved in the Statute of Gloucestei- and they were later abolished during the reign of George XII.

¶9To the same effect is Sir Matthew Hale, Vol. 1 “Historia Placitorum Coronae” (1736), p. 425 et seq. Other common law writers also give the year and a day rule for murder as beginning with the stroke: Hawkins, Vol. 1 “Pleas of the Crown”, Curwood ed. 1824, p. 91; Halsbury, Vol. 9 “Laws of England”, Hailsham ed. 1833, §734, p. 428; East. Vol. 1 “Pleas of the Crown”, pp. 214, 343; 3 Chitty, Perkins ed. 1836, p. 722; 3 Stephen “History of Criminal Law of England”, p. 7; 1 Bussell on Crime, Turner 10th ed. 1950; Perkins on Criminal Law, Univ. Text Book Series, 1957, p. 605.

¶10Only one writer throws doubt on the doctrine that the year and a day rule runs from the stroke in prosecutions for murder and from the death in appeals of *168death. This is Sir Edward Coke, 3 “Institutes of Laws of England”, Chapter VII. On page 47 he states the rule as follows: “Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the king’s peace, with malice forethought, either expressed by the party, or implied by law, so as the party wounded, or hurt, &c. die of the wound, or hurt, &c. within a year and a day after the same.”

¶11Then at page 53 this occurs: “But seeing the year and day in the case of murder and homicide, must be accounted apres le fait, after the deed, if a man be stricken or poisoned, etc. the first day of January, and he dieth of that stroke or poison the first day of May, whether shall the year and day be accounted after the stroke or poison given, or after the death? and it shall be accounted after the death, for then the man was murdered, and not after the stroke or poison given, &c. both in the indictment at the suit of the Icing, and in the appeal at the suit of the party. And so it hath been often adjudged . . .” (Emphasis added.)

¶12This is the only instance in our research where the rule is said to run from the death both in public prosecutions for murder and in private appeals of death.

¶13In the United States whatever confusion there may have been was put at rest by the Supreme Court in Louisville E. & St. L. R. R. Co. v. Clarke, 152 U. S. 230 (1894), 14 S. Ct. 579, where Mr. Justice Hablan said: “Ought we to allow this obvious construction of the statute to be defeated by any rule recognized at common law as controlling upon an inquiry as to the cause of death in cases of murder, appeals of death, or inquisitions against deodands?

¶14“In cases of murder the rule at common law undoubtedly was that no person should be adjudged, ‘by *169any act whatever, to hill another, who does not die by it within a year and a day thereafter, in computation whereof the whole day on which the hurt was done shall be reckoned first.’ 1 Hawk, P.C. c. 13; 2 Hawk, P.C. c. 23, §88; 4 Bl. Comm. 197, 306.”

¶15Taking up appeals of death, the Court went on, quoting from Comyn, 2 Inst. 320, tit. “Appeals”, D: “By the statute of Gloucester, 6 Edw. I, c. 9, an appeal shall not abate by want of fresh suit, if brought in a year and a day after the fact done; which statute is, by construction, restrained to an appeal for the death of a man. And, therefore, an appeal upon the death of a man may be within the year and day, though there be not any fresh suit; within a year and a day after the death, though the blow was given before.”

¶16Prom this we conclude that in prosecutions for murder the year and a day rule runs from the time the fatal blow was given or the cause of death administered, and that this rule, so interpreted, was part of the common law of England in and before 1776. However, whether the rule theretofore had become part of the law of the Commonwealth is unnecessary for us to decide because we are of opinion that it is not part of the definition of murder but only a rule of evidence or procedure.

¶17The Supreme Court of the United States, in the Clarkecase, said: “In prosecutions for murder the rule was one simply of criminal evidence.”

¶18Among the States only a few have classified the rule as being one of evidence, procedure, or pleading, on the one hand, or as being part of the definition of murder or as an essential element of it or as a matter of substance, on the other. In the following cases the court has explicitly held the rule to be one of evidence or procedure: People v. Clark, 106 Cal. App. 2d 271, 235 P. 2d 56 (Cal. 1951); Head v. State, 68 Ga. App. 759, 24 S.E. 2d 145 (1943); Elliott v. Mills, 335 *170P. 2d 1104 (Okla. 1959); Nevada v. Huff, 11 Nev. 17 (1876). In Head v. State, supra, (68 Ga. App. 759), the Court of Appeals of Georgia said: “However, the question before us is not one of offense, but one of procedure and evidence . . .

¶19“The courts of all the States that have dealt with the question . . . have with one accord held that unless death results within a year and a day from the date of the infliction of the mortal wound it is not criminal homicide. . . . The reasoning followed by the courts in the majority of the jurisdictions will be found well expressed in State v. Dailey, 191 Ind. 678, 134 N.E. 481, 20 A.L.R. 1006, supra. . . . For decisions of other States following the majority view see Howard v. State, 24 Ala. App. 512, 137 So. 532; Roberts v. State, 17 Ariz. 159(2), 149 P. 380; Kee v. State, 28 Ark. 155; People v. Kelly, 6 Cal. 210; State v. Bantley, 44 Conn. 537, 26 Am. Rep. 486; People v. Corder, 306 Ill. 264, 137 N.E. 845; Epps v. State, 102 Ind. 539, 1 N.E. 491; Rose v. Commonwealth, 156 Ky. 817, 162 S.W. 107; State v. Conley, 39 Me. 78; Commonwealth v. Snell, 189 Mass. 12, 75 N.E. 75, 3 L.R.A., N.S., 1019; State v. Keerl, 29 Mont. 508, 75 P. 362, 101 Am. St. Rep. 579 ; Debney v. State, 45 Neb. 856, 64 N.W. 446, 34 L.R.A. 851; Bowen v. State, 1 Ore. 270; Hardin v. State, 4 Tex. App. 355; Clark v. Commonwealth, 90 Va. 360(4), 18 S.E. 440; State v. Phillips, 59 Wash. 252, 109 P. 1047; Ball v. United States, 140 U.S. 118, 11 S. Ct. 761, 35 L. Ed. 377.”

¶20To these can be added, to show the extent of the rule in the United States: State v. Moore, 196 La. 617, 199 So. 661 (1941); Chapman v. People, 39 Mich. 357 (1878); State v. Borders, 199 S.W. 180 (Mo. 1917); State v. Orrell, 12 N.C. (1 Dev. L.) 139, 17 A. D. 563 (1826); Percer v. State, 118 Tenn. 765, 103 S.W. 780 (1907); and State v. Spadoni, 243 P. 854, 137 Wash. 684 (1926).

¶21*171Of these, the Louisiana, Michigan, and Washington cases speak of the rule as an essential averment or a substantive element, but no case within our research has built the rule into the definition of murder beyond the point indicated. A sample is the Chapmancase from Michigan, where the court said: “The injury which causes death is never regarded as constituting the crime of murder or manslaughter. The death of the victim not only within a year and a day, but also within the same jurisdiction was the controlling element which distinguished the guilt of the assailant from a common assault. The time and place of death were always considered as necessary to be averred, and toere required to be averred as independent of the averm,ents of assault.” (Emphasis added)

¶22In practically all of the cases cited above and by the Georgia court the question for decision had to do with the sufficiency of the indictment, with reference to averments of the time and place of death. The existence of the year and a day rule in each State was the important thing to determine. One reason why the nature of the rule was not more frequently analyzed may be suggested by Blackstone’s reference, infra to Coke’s statement about murder as a description rather than as a definition. In a description one may expect to find together but unsorted not only the elements of the crime but the jurisdictional requirements of time and venue and date of death. These latter requirements affect only the right to prosecute, not the structure of the crime.

¶23New York held, in People v. Brengard, 265 N.Y. 100, 191 N.E. 850 (1934), that the rule did not exist there because of a legislative history which showed an intent to abrogate the common law and because the New York Statute had an explicit definition of murder.

¶24The following states have statutory requirements: Arizona, Arkansas, California, Colorado, Delaware, *172Idaho, Illinois, Montana, Nevada, North Dakota, and Utah.

¶25In Pennsylvania we have no statutory definition but we have taken the Blackstonian definition as our own: Commonwealth v. Redline, 391 Pa. 486 (1958), 137 A. 2d 472, saying that it was substantially the one adopted in Commonwealth v. Drum, 58 Pa. 9 (1868), and uniformly applied thereafter. Redlinereads, at page 493: “A felonious homicide (i.e., murder) occurs when a person of sound memory and discretion unlawfully and feloniously kills any human being in the peace of the sovereign with malice prepense or aforethought, express or implied: see IV Blaekstone, Commentaries, p. 195; 1 Warren, Homicide, Sec. 63; 1 Wharton, Criminal Law, Sec. 419 (12th Ed.)” In Blackstone these words are preceded by the statement: “Murder is therefore now thus defined, or rather described, by Sir Edward Coke.” There is no mention of the year and a day rule. Blaekstone waits for two pages before mentioning it, and then says, at page 197: “In order also to make the killing murder, it is requisite that the party die within a year and a day after the stroke received, or cause of death administered.” The rule cannot, therefore, be said to be part of the definition of murder, either in Blaekstone or in Pennsylvania.

¶26Nor do we see any reason in principle for reading Blackstone’s addendum into the body of his definition. Stephen, Vol. 3 “History of the Criminal Law of England ”, page 7, called the year and a day rule “an arbitrary rule”, and Perkins, Criminal Law (1957), page 605, called it “a purely mechanical test which has been handed down from ancient times.” Halsbury, in his “Laws of England” (Hailsham Ed.), Vol. 9, §734, p. 428, said: “It is an irrebuttable presumption of law that the death is attributable to some other cause and the person who inflicted the injury is not punishable for murder or manslaughter.”

¶27*173A good reason for the rule appears in Warren on Homicide (1938), Yol. 1, §80, where the author says, quoting Coke: “. . . if the person alleged to have been murdered ‘die after that time, it cannot be discerned, as the law presumes, whether he died of the stroke, or poison, etc., or a natural death, and in case of life, a rule of law ought to be certain.’ ”

¶28The rule does not change the legal concept of the facts of the case but only prevents process being had upon them under certain conditions. It should not be considered part of the definition of the crime any more than should the rule .of venue: it is no less murder that prosecution of it may be had in county A but not in county B. It is clear, from Coke’s and Warren’s statement above, that the reason for the rule lay in the primitive state of medical knowledge at the time, or it may have been, as Judge Gordon suggests in Eva/wl, that it was designed to mitigate the rigor of the old law that exacted a life for murder and manslaughter indiscriminately.

¶29We can take judicial notice of the far advance since 1776 of scientific crime detection and of scientific medicine. We are not dealing with any of the basic and living rights of a defendant, like the right to confront his accusex*, the right to be presumed innocent, or the right to due process of law. A rule becomes dry when its supporting reason evaporates: cessante ratione legis cessat lex. There is now no more reason for a rule of a year and a day than there is for one of a hundred days or a thousand and one nights. The rule, as the New York Court of Appeals said in People v. Brengard, supra (265 N.Y. 100), is an “arbitrary span of time which was fixed by the common law”, and this was because of the limited medical knowledge of the times.

¶30A modern rule should be based on causation in the light of current knowledge. Society is free to prosecute murders without a statutory limitation, and it is pos*174sible that evidence and witnesses may be lost during a long interval between crime and trial. It is therefore not a strange idea to put no restriction of time upon the death of the victim and to require only proof of causation of conventional quality at the trial.

¶31If the common law cannot change it cannot live. In Commonwealth v. Hess, 148 Pa. 98 (1892), we said: “If the great mass of legal principles, which has decended to us under the name of the common law, were composed only of iron-clad rules, it would be wholly unsuited to the present age and generation, and the great changes which have taken place, not only in the volume of business, but in the mode of conducting it. We are constantly applying the accepted principles of the common law to new phases and modes of doing business. This is a necessity, alike dictated by common sense and the necessities of trade . . .”

¶32And in Jackman v. Rosenbaum Co., 263 Pa. 158 (1919), 106 A. 238; affirmed 43 S. Ct. 9, 260 U.S. 22, we said: “The fundamental principles of the common law, while liable to expansion, are in essence unchangeable, but their applicability to given conditions necessarily varies according to changes wrought by usage or statutory enactment; and, pursuing this thought, what today is a trespass, may, by development of law, not be so tomorrow. . . .”

¶33In Nesbit v. Riesenman, 298 Pa. 475 (1930), 148 A. 695, we said: “It is urged that in holding that a business, lawful in itself, may become a nuisance per se, we changed the common law, and that the legislature has the sole power to do this. We are not able to follow appellant’s- argument. . The function of determining-whether a rule of the common law exists, and what it is, lies solely with the court, as does also the question whether given conditions offend that law.”

¶34Our conclusion is that we may change a common law rule of evidence without being guilty of judicial legisla*175tion, and abolish it when we are aware that modern conditions have moved beyond it and left it sterile.

¶35In People v. Legeri, 239 App. Div. 47, 266 N.Y.S. 86 (1933), the Court said: “Great advances have been made in medicine and surgery, and the doubt that the blow was the cause of death, when the latter ensued a year and a day after the former, has, in large measure, been removed. Frequently, there is now light where once there was darkness.”

¶36The order is affirmed.

¶37Concurring Opinion by

¶38Defendant-appellant was indicted on two bills, one for murder and one for manslaughter. Both indictments allege that on or about September 21, 1958, in Philadelphia County, Boy Ladd, with force and arms, feloniously, wilfully and with malice aforethought, assaulted Dorothy Pierce and wilfully and with malice aforethought, killed and murdered her; and in another count charged that Boy Ladd feloniously, wilfully and with malice aforethought, gave Dorothy Pierce a mortal wound from which mortal wound she died on November 1, 1959. Defendant moved to quash the indictments because death occurred more than a year and a day after the stroke, and consequently he could not, under the common law definition of murder, be guilty of murder or manslaughter. The court below overruled the motion and defendant appealed.

¶39We are all agreed that the crucial question is whether the year and a day rule is part of the present law of Pennsylvania. Mr. Justice Bok and Mr. Justice Musmanno have made an exhaustive review of common law murder.* I agree with Justice Bok’s conclusion, *176but I reach that conclusion by a very different route. From my examination of the authorities I am convinced that the year and a day rule was, at common law, part and parcel — and an absolutely essential indispensable part and parcel — of the substantive law of murder: Statutes of Gloucester, 6 Edward I, Ch. 9 (1278); Sir Edward Cohe, Lord Chief Justice of England, 3rd Institutes of Laws of England, Ch. VII, page 52 (Circa 1620); IV Blackstone’s Commentaries, Ch. 14, page 197; Hawkins “Pleas of the Crown”, Vol. 1, 8th Ed. (1824), Ch. 13, §9, page 93; Stephens’ History of the Criminal Law of England, Vol. 3, pages 7, 8; Bussell’s Law of Crimes, 7th Ed., page 690; Halsbury’s Laws of England, Vol. 9, 2nd Ed., §734, page 428; Chitty, The Criminal Law, Vol. 3, page 276; Wharton’s American Criminal Law, Vol. 2, §1073; Warren on Homicide, Vol. 1, page 60; Perkins on Criminal Law, page 605; 40 C.J.S., Homicide, §12, page 856; 26 Am. Jur., §46, page 190; Louisville E. & St. L. R.R. Co. v. Clarke, 152 U.S. 230.

¶40A few quotations will suffice:

¶41Sir Edward Coke said: “Murder is when a man of sound memory, and of the age of discretion, unlawfully killed within any county of the realm any reasonable creature in rerum natura under the king’s peace, with malice aforethought, either expressed by the party, or implied by law, so as the party wounded, or hurt, &c. die of the wound, or hurt, &c. within a year and a day after the same.”

¶42IV Blackstone’s Commentaries, Ch. 14, page 197: “In order also to make the killing murder it is requisite that the party die within a year and a day after the stroke received or cause of death administered.”

¶43In Halsbury’s Laws of England, Vol. 9, 2nd Ed., §734, page 428, the following appears: “If death does not ensue until after the expiration of a year and a day from the date when the injury was inflicted, it is an *177irrebuttable presumption of law that the death is attributable to some other cause and the person who inflicted the injury is not punishable for either murder or manslaughter.”

¶44In Bussell’s Law of Crimes, 7th Ed., page 690, it is stated: “Time of Death. No person can be convicted of murder or manslaughter of another, who does not die within a year and a day after the stroke received, or cause of death administered in the computation of which the whole day upon which the hurt was done is to be reckoned the first.”

¶45In Wharton’s American Criminal Law, Yol. 2, §1073, (6th Ed.) it is said: “An indictment upon which it does not appear that the death happened within a year and a day after the wound was given is fatally defective; because, when the death does not ensue within a year and a day after the wound is inflicted, the law presumes that it proceeded from some other cause.”

¶46The Act of January 2-8, 1777, 1 Smith’s Laws 429, §2, 46 PS §152, provides: “Each and every one of the laws or acts of general assembly that were in force and binding on the inhabitants of the said province on the 14th of May last shall be in force and binding upon the inhabitants of this state . . . and the common law and such of the statute laws of England as have heretofore been in force in the said province. . . .”

¶47We are then presented with the question: Was the common law rule of a year and a day part of the common law of the Province or of the Commonwealth of Pennsylvania in 1777 and if so, has it been changed or should it now be changed? My answer to the first part of this question is that there is no Statute or decision of the Supreme Court of Pennsylvania which was created on May 22, 1722 which expressly or by necessary implication holds that the year and a day rule is or ever was part of the law of Pennsylvania; *178on the contrary numerous decisions of this Court by their definition of “murder” clearly negate the existence of any such rule.

¶48It is hornbook law that the common law is not and was not as immutable as the law of the Medes and the Persians; it was a gradual development of law which slowly changed to meet changing conditions. Murder has often been defined by the Courts of this Commonwealth but we repeat has never been defined to include the rule of a year and a day, and consequently that rule is not an essential element or part of the substantive law of Pennsylvania.

¶49It is inaccurate to say that murder in Pennsylvania today is common law murder as it was adopted originally in 1777. Our theory and our definition of murder were initially derived from, and even today, with certain exceptions hereinafter referred to, are largely based upon the common law.* In Commonwealth v. Bolish, 381 Pa. 500, 510, 113 A. 2d 464, the Court said: “The theory of the common law was that anyone who committed a common law felony… possessed legal malice; and where a killing naturally resulted therein or therefrom, even though the killing was unintentional or accidental, the legal malice was carried over from the original felony and the original felon was guilty of murder.

¶50“To summarize: If there was an unlawful killing with (legal) malice, express or implied, that will con*179stitute murder even though there was no intent to injure or kill the particular person who was killed and even though his death was unintentional or accidental: [citing 12 prior decisions of this Court, Blackstone and numerous text authorities].n

¶51Murder in Pennsylvania is common law murder (a) as extended or modernized or changed by Statute, and (b) as interpreted and applied to modern conditions by the Supreme Court of Pennsylvania. For example, (1) the Legislature has declared (a) that death resulting from trainwrecking is deemed to be murder;1 and (b) that death resulting accidentally, unintentionally or otherwise from the common law misdemeanor of kidnapping is murder;2 and (c) that death resulting accidentally, unintentionally or otherwise, in the perpetration or attempt to perpetrate statutory arson,3statutory burglary,4 and statutory rape5 (each of which was a misdemeanor at common law and not a felony or murder) is murder; and (d) that petit treason is murder;6 and (e) that a killing of a prisoner during an attempt to rescue or release him from lawful authorities is murder;7 and (f) that a killing of any person by a mob of three or more persons acting in violation of law is murder.8 (2) This Court (a) has also made important changes in felony *180murder;9 and (b) has modernized the definition of murder.10

¶52Murder in Pennsylvania was first authoritatively defined in the famous ease of Commonwealth v. Drum,1158 Pa. 9, 15 (1868) : “At the common law murder is described to be, when a person of sound memory and discretion unlawfully kills any reasonable creature in being and under the peace of the Commonwealth, with malice aforethought, expressed or implied.” This definition has been followed in substance ever since.

¶53From Commonwealth v. Drum to the most recent decision of this Court, the year and a day rule has never been an essential element of or a substantive part of the law of murder in Pennsylvania. What was the origin, the reason and the basis for the rule? (a) Was it based on a lack of medical knowledge in medieval and later times, or (b) was it an alleviation of the rigors of the common law, or (c) was its origin the protection of persons accused of this heinous crime at a time when their witnesses may have died or disappeared, and hence a rule of (a) substance, or (b) evidence, or (c) limitation? In view of the limited medical knowledge of those times and the definition of murder given supra by leading text authorities, doesn’t it seem likely — realistically, logically, and authoritatively — that the rule was substantive if the rule ran from the stroke (as nearly all the leading authorities said it did), and evidential, procedural or limitational if it ran from the death of the victim?* Cf. also Sir *181Edward Coke, Lord Chief Justice of England, 3 Institutes of Law of England, Ch. VII, page 52, circa 1620.

¶54It is clear from the authorities herein cited that the rule is not and in the light of modern medical knowledge should not be a part of Pennsylvania’s substantive law of murder. Furthermore, there can be no justifiable reason today for the year and a day rule as a rule of evidence or procedure or limitation irrespective of whether the time be computed from the fatal stroke or from the death of the victim.*

¶55The reason for approving it as a rule of evidence does not clearly appear. With respect to indictment or prosecution, a murder may not be discovered, or the identity of the killer may not become known until more than a year after the crime, or the public authorities may not discover for years that an apparently natural death or a supposed suicide resulted from an unlawful killing. Why should a murderer receive the protection of this antiquated common law indictment or evidentiary rule, and Society be further shackled in its already heavily handicapped fight against killers? The safety, the protection, and the welfare of Society are paramount, and require that there be no rule of evidence or of limitations for murder or for the prosecution of the murderer. It is as simple as that.

¶56Furthermore, if authority be needed to support such an obviously wise and just position, it can be found in §77 of the Act of March 31, 1860,… as amended by §1 *182of The Penal Code of April 6, 1939, and in Commonwealth v. Dans, 211 Pa. 507, 60 A. 1070. The Code provides in effect that there shall be no limitation in indictments for murder.

¶57In the Danscase, the husband of Mrs. Danz, the defendant, died on June 27, 1901, of chronic arsenic poisoning.* It was believed he died a natural death. Nearly two years after his death, his body was removed from the grave and exhumed and traces of arsenic poison were found. Mrs. Danz was indicted for murder on June 12, 1903. The evidence of the Commonwealth was aggressively disputed, controverted and denied — factually, medically and legally. If the year and a day rule applied in Pennsylvania — either as a rule of evidence or a rule of procedure or limitation, it would have been urged and applied in that case. Nevertheless, Mrs. Danz’s conviction of murder in the first degree was sustained unanimously by this Court.

¶58This opinion could stop here were it not for the majority’s definition of murder. That definition — taken by the majority (although not quite verbatim) from the highly controversial case of Commonwealth v. Redline, 391 Pa. 486, 493, 137 A. 2d 472, (which was in substance the same as the murder-definition in Commonwealth v. Drum, 58 Pa., supra) — is: “a felonious homicide… (i.e., murder) occurs when a person of sound

¶59*183memory and discretion,* unlawfully and feloniously kills any human being in the peace of the sovereign with malice, prepense or aforethought.”

¶60In order to define murder, why employ (if it can be avoided) antiquated verbiage, or words or expressions which today have a different meaning, instead of using modern words and language which clearly express and explain to a jury “what is murder”? Let’s analyze the majority’s definition. In the first place there is no “sovereign” in Pennsylvania or in the United States of America today, so why mention it? In the next place, a jury does not know and how can a trial judge clearly explain to a jury the meaning of “felonious” in a killing by poison, stabbing, lying in wait, or any other wilful deliberate and premeditated killing? Furthermore, it is inaccurate to limit murder to a “felonious” killing, since it includes a killing resulting from an aggravated assault and battery which is a misdemeanor. Cf. §709 of the Penal Code of 1939, Commonwealth v. Dorazio, 365 Pa. 291, 74 A. 2d 125. In other words, isn’t “felonious” as used in the majority’s definition, misleading or confusing and inaccurate?

¶61Next, the Commonwealth does not have to prove-as the majority’s definition of murder implies it must— that the defendant was “a person of sound memory and discretion”. No jury and few Judges would be able to agree upon what is meant by “a person of sound memory and discretion,” if they are interpreted literally; — and how could a trial judge explain to a jury accurately and aptly the meaning of these words? If these words, contrary to their present ordinary and popular meaning, merely mean (as I believe they mean) a person who is “sane”, then the majority’s definition is erroneous because the Commonwealth (we repeat) does not have to prove that an accused *184murderer was sane: Commonwealth v. Carluccetti, 369 Pa. 190, 85 A. 2d 391; Commonwealth v. Iacobino, 319 Pa. 65, 178 A. 823.

¶62In Commonwealth v. Carluccetti, the Court speaking through (the present Chief)' Justice Jones, said (page 199) : “As sanity is the legally recognized normal condition of human beings, its existence in any given instance is presumed. Consequently, the burden of proving insanity as a defense to a criminal charge is upon the one asserting it. It is incumbent upon him to establish the alleged defective mental condition by a fair preponderance of the evidence. Commonwealth v. Iacobino, 319 Pa. 65, 68, 178 A. 823.”

¶63Still further, the majority’s definition of murder would make a person who committed suicide guilty of murder, and a person who unsuccessfully attempted to commit suicide guilty of an aggravated assault and battery on himself, or an assault and battery with intent to kill himself — contrary to the existing law of Pennsylvania. See: Commonwealth v. Wright, 11 Pa. D.R. 144; Cf. Article I, §19 of the Constitution of Pennsylvania; cf. also Commonwealth v. Woodhouse, 401 Pa. 242, 164 A. 2d 98. Suicide or attempted suicide is not a crime against or a menace to Society; it is a frowned upon or deplorable act by a perpetrator against himself which deserves and should receive not (a jail sentence or) punishment by Society but the sympathy of Society.*

¶64It is clear, therefore, that the modern and the most accurate definition of murder is not that which is stated in the majority opinion, but that which was set forth in Commonwealth v, Buzard, 365 Pa. 511, 515, 76 A. 2d 394, and in Commonwealth v. Bolish, 381 Pa., supra; “Murder is defined as an unlawful *185killing of another [human being] with malice aforethought express or implied.” The word “malice” is used legally. It is universally agreed that legal malice is not only an essential ingredient of murder, it is the hall-mark and distinguishing criterion of murder. Furthermore, its legal meaning which is so well established, can be easily and clearly explained to a jury. See: Commonwealth v. Bolish, 381 Pa. 500, 113 A. 2d 464 (and twelve decisions and six leading text authorities cited therein) ; Commonwealth v. Thomas, 382 Pa. 639, 117 A. 2d 204; Commonwealth v. Dorazio, 365 Pa., supra; Commonwealth v. Malone, 354 Pa. 180, 47 A. 2d 445; IY Blackstone Comm. §198, page 1596.

¶65Why not stick to this clear and easily understandable definition of murder?

¶66For each and all of the aforesaid reasons I concur in this Court’s affirmation of the Order of the lower court which overruled a motion to quash the indictments because they showed on their face that death occurred more than a year and a day after the fatal blow.