131 A. 657 | Pa. | 1925
This appeal by William J. Bishop, the defendant, is from sentence on conviction of murder of the first degree; and, while the case rests very largely upon his own extra judicial statements and confessions, the record discloses no adequate ground for reversal. Shortly after *53
six o'clock on the evening of December 29, 1923, Enos Robb, the deceased, left his home in Palmyra, Lebanon County, and walked along the street about five hundred and forty feet when he received a bullet wound in the forehead, which caused his death. So far as known, the deceased had with him no firearm and none was found in the vicinity of the body, which, with the report of three shots, pointed to homicide rather than suicide, and afforded ample evidence of the corpus delicti to justify the admission of a confession. In such case where all the facts are consistent with a felonious killing a confession may be received although the possibility of suicide is not excluded. In Com. v. Gardner,
Defendant's brother, Benjamin Bishop, as a witness for the Commonwealth, testified that, on the afternoon of the day of the shooting, defendant told him he was in need of money and was going out that night to get it, — kill if he had to, — and two days later defendant confidentially admitted to him that he killed Robb. A month thereafter, on February 3, 1924, defendant gave the officers a signed statement setting forth that he saw Jimmie Miller shoot Robb; on the strength of which Miller was confined in jail for some days. Eight days later defendant gave the officers a second signed statement in which he admitted shooting Robb, but asserted he did it under the belief that it was another party and that the latter was about to attack him. Then, on the following day (February 12, 1924), defendant gave the officers a third statement in detail, which he wrote with his own hand and wherein he stated, inter alia, that he was badly in need of money and took his gun from his mother's house at Hershey, told his brother he was going out that night to get some money, no matter where, that he went to Palmyra some four miles on the street car, and states that while walking on the street: "I saw a man coming tuward me an these thoughts came back to my mind hold him up maybe he has some money I walked tuward him an when I got just about eaven I said stick em up then he jerked his hands out of his pockets then I thought he was going to shoot then I fired and that is how this awful thing happened then I run I didnet look to see who it was or if he had money." He also says in this statement that he told his brother Ben the next day he thought he killed a man the previous night and further that he was drunk or he would not have done it. Defendant wrote his mother the same day stating, inter alia, that had he not been drunk he would not have done this awful thing. He wrote his wife at the same time *55 saying he was in jail for causing a man's death, and added, "but when I shot him I shot in self defense."
At the trial defendant took the stand and denied his guilt, also stated that the confession was extorted from him by threats and putting him in fear. However, as the witnesses for the Commonwealth had testified that the confession was voluntary it had rightly been received in evidence and the trial judge properly instructed the jury to decide whether it was voluntary or involuntary and if the former to consider it, but, if the latter, to disregard it; which was all the defendant had a right to ask: Com. v. Epps,
The heading to the statement of February 12th, after asserting its voluntary character, says, "and knowing that it may be used for me or against." It is contended for defendant that the words "for me" indicate it was made in the hope of gain and therefore was not voluntary. This contention is not sound, although at one time it seems to have been a mooted question in the British courts; so far as called to our attention, it has not been recognized in this country, certainly not in Pennsylvania (see Com. v. Spardute,
The defense of insanity was not interposed; but, for the purpose of showing defendant was in such a nervous condition when he made the confession (February 12, 1924) as to be easily misled, his mother was asked what change she observed in his nervous condition on his return from the world war. This was properly excluded as being too remote. For a like purpose defendant offered to prove by a lay witness that in the fall of 1923, defendant "keeled over with a nervous attack that required the service of a physician." This was properly rejected as too indefinite, as there was no offer to show that the attack resulted from or was caused by any permanent nerve impairment; furthermore, a lay witness *56 would not know whether defendant's lapse resulted from a nervous attack or from some other cause, and it did not tend to establish his condition when the confession was made.
The letter to the mother was properly received in evidence as it was voluntarily turned over to the Commonwealth by defendant's brother. The letter to the wife was also competent as defendant gave it in an open envelope to an officer, who kept it and sent the wife a copy. As she never had the letter and never gave it to any one it does not fall within the rule (see Com. v. Fisher,
An assistant stenographer took the testimony, charge, etc., during the trial of this case and joined with the trial judge in certifying the record. No suggestion is made that his duties were not performed accurately and with fidelity, but it is urged that he was not sworn as the statutes require. The presumption is that the stenographer had complied with the law in that respect and the contrary was not shown. Moreover, the jury tried the case on the evidence given in open court and their verdict could not have been influenced in the slightest degree by the fact as to whether the stenographer was or was not sworn; neither can this appeal, as the accuracy of the record is unchallenged. As no harm resulted to the defendant and as he made no request that the stenographer be sworn, we conclude that such question cannot be raised after a trial and verdict upon the merits. If error it was harmless for which a judgment will not be *57
reversed: Com. v. Divomte,
We have carefully examined all the reasons urged for a new trial, including the so-called after-discovered evidence, but are not persuaded that the discharge of the rule therefor constituted an abuse of discretion. The corpus delicti, being sufficiently established, the credibility of defendant's admissions and confessions was for the jury. The circumstances in corroboration thereof were not strong, but included the fact that defendant was in need of money, that he owned a revolver of the same caliber (.38) as the one which killed Robb, that he was in the vicinity at the time in question, that he gave conflicting accounts of the transaction and that he directly charged an innocent third party with the crime. The latter, as an effort to divert suspicion, is always regarded as a circumstance indicative of guilt: Com. v. Spardute, supra; Com. v. Johnson, supra. The evidence favorable to defendant, — including that tending to show he did not have his gun with him on the night in question, also that tending to support the claim of an alibi, although very weak, — was submitted to the jury.
The trial judge, in charging the jury, quoted the statute constituting the first degree murder committed in an attempt to perpetrate robbery, and said the defendant would be guilty of that degree of crime if the jury found *58 he killed the deceased while attempting to rob him. He also quoted the statute imposing upon the jury the duty of fixing the degree of murder in case of conviction and said further: "The jury always has to determine in murder, whether of the first degree, second, or voluntary manslaughter; that is included in the count for murder." So the contention that the trial judge took from the jury the right to fix the degree, is untenable. While he explained the nature of the crime, under the statute, as was his duty, he left with the jury the right to fix the degree, and that is what the law requires. It is not necessary for the trial judge to reiterate to the jury in every part of the charge their right to fix the degree: Com. v. Spardute, supra.
The indictment charged the defendant with murder and in a second count with voluntary manslaughter. The trial judge stated to the jury in effect that the second count was surplusage as under the first count the defendant might be convicted of either degree of murder or of voluntary manslaughter, which was entirely accurate: Com. v. Gable, 7 S. R. 423. There is no just ground for criticism of the trial judge's definition of voluntary manslaughter; furthermore, as there was no evidence tending to reduce the crime to that offense it was not necessary for the trial judge to even define it: Com. v. Spardute, supra; Com. v. Lessner,
Error is assigned to numerous excerpts taken from the charge, mostly as to comments upon the facts, but all are accurate when taken, as they must be, in connection with the context: Com. v. Prescott,
The verdict as returned in open court, ratified by a poll of the jury and entered of record, convicted defendant of murder of the first degree, but the clerk found among the papers returned by the jury a writing as follows: "To Hon. Judge of Leb. Co. Owing to insufficient evidence in this case as held by several members of our jury as to cause a doubt in their minds, we have unanimously agreed to beg The Honorable Court of Leb. Co. for leniency in sentencing Wm. Bishop in our verdict. J. S. Ulrich, Foreman." The verdict is that announced in open court and recorded as such: Dornick v. Reichenback, 10 S. R. 84; Com. v. Breyessee,
As is our duty under the statute, we have reviewed both the law and the evidence to determine whether the ingredients necessary to constitute murder in the first degree were proved to exist and find they were. In such review we must assume the truth of the evidence adverse to defendant, the credibility of which was for the jury to pass upon. Mr. Justice SIMPSON, for the court, in Com. v. Diaco,
The assignments of error are overruled, the judgment is affirmed and the record is ordered remitted for the purpose of execution.
