153 Pa. 535 | Pa. | 1893
Opinion by
The prisoner, defendant, Pietro Buceieri, on the afternoon
As the 15th, 17th, 18th and 25th assignments allege error in instruction to the jury which tended to bring about the verdict, we will consider them first.
The prisoner is a shoemaker by trade, possessed of some education, is thirty-eight years of age, was born in Italy, came to this country in 1883, located in Reading about the year 1887, carried on his trade there until the 7th of January, 1892. That day, by the explosion of an oil lamp, he was so severely burned in the left arm as to permanently cripple that member; the same day he was removed for treatment to St. Joseph’s Hospital, a Catholic charitable institution in the city of Reading. There he remained until the 23d of June, 1892, being nursed and cared for all the time, and although the injured arm was useless, otherwise he had become strong physically. Sister Mary Hildaberta, the deceased, was about twenty-three years of age, was a member of the religious order of St. Francis, and with other members of her order assisted in ministering to the wants and alleviating the sufferings of diseased and injured patients. She had taken her turn for five and a half months, day and night, in nursing the prisoner and his fellow-sufferers in the hospital; her last act of kindness to him before he stabbed her was to place a glass of milk at his bedside. About a quarter to four o’clock on the afternoon of the day in question, Laurence W. Scott, another patient, was sitting in an invalid’s chair near the entrance to the sick-room, when the prisoner came to him and asked the loan of his knife to mend his pants. Scott handed him the closed knife. The prisoner, having the use of but one hand, asked Scott to open the blade, which he did. Just about this time, Sister Hildaberta had come into the sick-ward with two glasses of milk; one of them she gave
In view of these facts, it seems to us, the language of the learned judge, “ If for any period of time, no matter how short, there was a conscious design to kill, the killing was murder of the first degree,” was proper instruction. The conduct of the prisoner, for the few seconds preceding the fatal stabs, points to both deliberation and premeditation; indeed, it is rare in homicide cases that these operations of the mind are indicated by acts so significant of them, and of nothing else. The prisoner, with the object of his attack in view, observing her movements and that she is about to go to the kitchen, borrows from his fellow-patient a knife, a deadl}' weapon, the first act indicative of the purpose; every movement from that moment until the moment he plunged it into the body of Sister Ilildaberta, distinctly disclosed the existence and persistence of the purpose. He asked that the knife be opened; the purpose, immediate use; concealed it in his hand, that this purpose might not be discovered or interrupted; followed her to the kitchen, where the interference of other patients could not balk him in his purpose, and then with unrelenting ferocity of purpose repeatedly stabbed her.
There can be no purpose in the mind such as this one, which is not the product of deliberation and premeditation ; the fact of the one necessarily presupposes the existence of the others. Where a cruel and deadly blow has been struck, and no pre
As to the absence of the word “ willful ” in the instructions at the close of the charge, recapitulating in substance what had been said on the question of insanity and premeditation, no injury could have resulted to defendant by the probably inadvertent omission. The definition of murder of the first degree had been very clearly stated in other portions of the charge, as well as the distinction between it and murder of the second degree. The jury could not possibly have been misled, or have forgotten the pointed instruction that murder of the first degree is the specific intent to take life of a mind fully conscious of its purpose. .
The 18th assignment complains that the general tenor of the charge was unfair to the prisoner, and did not correctly present his case on the evidence.
A charge may be technically correct, and so acurrately state the law that no specific error can be pointed to, and still may in its tone be so one-sided as to be liable to the charge of partiality. But, after a careful reading of this charge, and a close scrutiny of all the evidence, we are confident that this assignment is not well founded. The defence of the prisoner, insanity, was prominently brought to the attention of the jury,
Here, the commonwealth having proven willfulness, and the fully formed purpose to kill, every averment of the indictment was sustained; the law did not call for proof of a sufficient motive, or of any motive. Who can, with reasonable certainty, in the larger number of homicides, determine the exact motives for them? We have no personal experience to guide us; to courts and juries, so far as concerns their own consciousness, no motive is sufficient to account for willful, deliberate, and premeditated murder; they never committed murder; never wanted to. Observation teaches them, that avarice, jealousy, revenge, and other passions do impel men to murder; that the most trivial slight sometimes starts into action a murderous propensity; at other times, the motive is completely hidden. Here, there was significant evidence of hatred on part of prisoner towards deceased; this, we know, has at times moved wicked hearts to murder. Three or four days before the killing, the prisoner said to Scott, “ Me no like this sister; sister no like Italian man.” After arrest, he said to policeman Mayer, “ She don’t like Italian; she wanted to get Italian to jail.” When in prison Jacob Kershner asked him, “ Why did you do this ? ” And he said, “ I was sick; sister didn’t treat me right, didn’t like Italian; I didn’t like sister.” To the peaceably inclined, it is utterly incomprehensible how such a feeling as this should find gratification in the murder of the gentle and inoffensive woman who was the object of it, yet from observation
As to the 25th assignment, that “ the ingredients necessary to constitute murder of the first degree do not exist in the evidence,” we do not see that a single one is lacking, if the prisoner at the time of the killing was sane. If he was not sane, the burden was on him to show it. He adduced evidence that he was an epileptic; proved, what is undoubtedly true, that ¡¡he tendency of that disease in an aggravated form is to weaken the intellectual powers, and in some eases to produce total insanity ; but he went no further. The evidence wholly failed to show that his affliction, to any serious extent, impaired his intellect, or that on the 28d of June he was in any degree affected by it. The physicians and others at the hospital, whose duty it was to see him and minister to him, testify that, during his stay there, he had only one attack of epilepsy, and that one about five weeks before the killing. George Morrison, a witness, called by him, testified that he had known him intimately for five years, and that only on two occasions had he seen him act irrationally, and never, in the whole time, had seen him have an epileptic fit. The evidence did not show such a phase of the disease as warranted an inference of general insanity, and there was entire absence of proof that on the day of the crime he was other than of sound mind.
We recur now to the first specification of error, the refusal of the court to grant a continuance to next term.
The ground of the application for continuance was want of time for preparation by counsel, and for obtaining witnesses by the prisoner.
This was an appeal to the sound discretion of the court. A very gross abuse of this discretion would have to appear before we would sustain the assignment; nothing of the kind is here shown. The senior counsel was assigned more than a month before trial, the junior five days; their client was near them; communication was easy; they had daily access to the court, and could invoke all the power of the commonwealth to compel the attendance of witnesses. The prisoner was not a stranger in Heading; he had lived there for some years. The presump
The second assignment is to the refusal of the court to order a change of venue.
The act of assembly of March 18, 1875, provides, that in criminal prosecutions the venue may be changed, when it is made to appear to the satisfaction of the court that from undue excitement against the prisoner in the county where the ofEence was committed a fair trial cannot be had, or that there exists so great a prejudice against him that he cannot obtain a fair trial.
In support of this application the affidavit of the prisoner and Henry Wickel and George W. Mannerback, two citizens of Reading, were presented. All. three state a belief that a wrong prejudice existed against the prisoner in Reading, and that by reason of this prejudice a fair trial could not be had in Berks county. It will be observed that, to secure the change of venue, it must be made to appear to the satisfaction of the court that because of “undue excitement,” or from “great prejudice ” a fair trial cannot be had. The intensity of the excitement and the extent of the prejudice, if either or both exist, are peculiarly within the sound judgment of the court where the crime has been committed. The credibility of the ex parte affiants is best known to them; popular vindictiveness, which tends to embarrass the administration of justice, obtrudes itself with as much offensiveness on the notice of a judge as on others. With the better opportunity for knowing, the court was not satisfied the prisoner could not have a fair trial in Berks county. To move us to decide there was error in this, we would have to be satisfied by the same affidavits that such excitement or prejudice did exist; would have to credit what the court below did not believe. It is sufficient for us to say that the evidence which failed to satisfy the court below comes far short of satisfying us, especially when the persuasive evidence of the judgment of an impartial court has determined its unsatisfactory character. Indignation, because of the cruelty of the deed, there doubtless was; it would be strange if such were not the case in a law-abiding community; but there is nothing which convinces us of the existence of such passion or prejudice as would prevent the twelve “ sober, intelligent, and judicious ”
The 3d and 4th assignments are to the refusal of the court' to quash indictment, and to direct the commonwealth to furnish prisoner’s counsel with a bill of particulars.
The indictment itself is drawn in the general terms directed by the criminal code of 1860. There are doubtless cases where it is proper that the prisoner should have, under an indictment so drawn, a more particular specification of the accusation he is called upon to defend against, otherwise he might be taken by surprise. It is enough to say that this does not belong to that class of cases. The indictment charged that, on the 23d of June, 1892, the prisoner within the county of Berks did “ feloniously, willfully, and of his malice aforethought, kill and murder Sister Mary Hildaberta.” It was not necessary, to constitute a good indictment under our statute, that the weapon used should be averred, nor the manner of the killing ; before arraignment, if it be made to appear to the court that any injustice is likely to be done the prisoner because of vagueness of the indictment, a bill of particulars may be ordered : this, not because the prisoner has a right to demand it, but because the court, after trial, on proof of surprise or injustice in consequence of the absence of specific averment as to weapon and manner of killing, would set aside the verdict and grant a new trial.
Here, the indictment set out all the law demanded; a bill of particulars could give the prisoner no information as to the weapon or manner of killing which he did not possess before arraignment. It is not pretended that he was “ surprised ” by unexpected proof, or that the commonwealth proved the use of a weapon not theretofore known to him, nor that the manner of killing was other than he knew he was charged with. If, by a bill of particulars, was meant a specification of the evidence to be adduced by the commonwealth, this the prisoner had no right to ask nor the court any right to direct.
The 5th assignment is to the decision of the court sustaining the challenging for cause by the commonwealth of Thomas J. Hill, called as a juror.
The juror, on being sworn to make true answers, in substance said he did not think a man who would commit such an offence
The 6th assignment alleges the court erred in refusing to permit a witness, Gustano Bruno, called by prisoner, to give an opinion as to his sanity. The witness was twenty-seven years of age ; was a native of same town in Italy as prisoner, and had known him there; knew he there had epileptic attacks frequently, and had heard he was discharged from the army on account of them; the prisoner came to this country about ten years ago, the witness six years afterwards; the one lived at Reading, the other at Robesonia, twelve miles distant; the witness saw prisoner, sometimes once in three months, and sometimes once a month; when they visited each other it was for a day; at times when witness saw prisoner he was attacked with epilepsy; the last attack was in November previous; the last time he saw prisoner was four months before the 23d of June, in February. It will be seen that the intercourse between them was not close ; the opportunities for observation were not frequent. The witness was permitted to testify as to the condition of prisoner’s mind immediately after the epileptic fits, and at other times when he saw him. But prisoner’s counsel put this question:
“ Q. From what you know of this man’s manner and habit, conduct and appearance, from his sickness for eighteen years as you have testified, from his entire behavior, you may state whether or not at the time he killed Sister Hildaberta he was sane or insane ? ”
To this the commonwealth objected, and the objection was sustained.
To sustain the charge of error in this particular, Taylor v. Commonwealth, 109 Pa. 270, is cited, which rules that witnesses, not experts, after testifying to acts and conversations ot the prisoner may give an opinion as to his sanity. This is doubtless a correct statement of the law in its application to the facts of that case. But the acts and conversation, as well
The 7th and 8th specifications may be considered together; they charge that the court improperly permitted the commonwealth to adduce evidence of prisoner’s drinking habits and drunkenness. As an independent fact, of course this would have been error, but in answer to the defence set up it was clearly admissible. The prisoner had offered evidence that he was subject to epileptic fits from which at times he fell to the floor or ground, and lay in a stupor; that on recovery his mind was disordered and his memory gone ; that these attacks were so frequent it was fairly inferable for a great part of the time he was insane. In answer, the commonwealth called witnesses who lived near and saw him often, to prove that they never saw him have an epileptic attack, but often saw him drunk and in a drunken stupor. It was alleged from this, that the falls and stupor which prisoner attributed to epilepsy were really due to drink.
The 9th specification of error is in permitting Dr. A. B. Dundore to give an opinion, on seeing the prisoner within an hour after he had killed the deceased, as to whether there were any indications then in his appearance of a recent epileptic attack. Dr. Dundore was a reputable physician of twenty-eight years experience; he stated he saw the prisoner about five o’clock in the afternoon at the station house, and his arm was then bleeding; he said it was injured by a burn, and answered intelligently the questions put to him. The doctor noted his pulse and made such observation of his appearance as an intelligent physician would make of a patient, when called to alleviate suffering from an injured arm. With his long experience, and from this examination, he said there were no indications of a recent epileptic convulsion, and if there had been such an attack within two or three hours he did not think it possible that he then would not have seen some evidence of it. The examination of the prisoner was not a very rigid one, and was not made for the purpose -of ascertaining whether there had been a recent epileptic convulsion; but the character of the examination detracted only from the value of the opinion, as expert testimony; it was admissible, and there was no error in placing it before the jury for their consideration.
Concerning the 10th assignment of error, in permitting Dr. Martin Luther to give an opinion as to the prisoner’s power of memory from the nature and accuracy of his narrative on the witness stand, that could not possibly have prejudiced the prisoner before the jury. But, taking the whole of Dr. Luther’s testimony, we think his opinion as to the strength of memory, in .the connection in which it was given, was not objectionable. He was called as an expert to give his opinion, not as to the power of prisoner’s memory, but as to the effect of epilepsy on this faculty of the mind, and that there had not been such impairment of it, as indicated epileptic insanity. As an illustra
The lltli and 12th assignments may be considered together. The one complains that the court refused to grant an adjournment from Saturday evening until Monday morning; tbe other, that the time allowed counsel for discussion of tbe evidence was too short, being only two hours. Both matters were so clearly within the discretion of the court below that we doubt if the learned counsel for appellant seriously expected other than tbe -formal overruling of the assignments, which is now ordered.
The 13th assignment alleges that the court in the charge misstated the argument of counsel to the jury, and then peremptorily negatived the conclusion drawn from it. This is that part of the charge complained of under this specification:
“You will remember that tbe insanity with which the prisoner is claimed to have been afflicted is deduced principally from the enormity of the crime in the absence of any motive, etc. I charge you, gentlemen, that the enormity of the crime itself is no evidence of insanity.” Counsel deny that they, at any time, contended that the enormity of the crime was evidence of insanity; this, say they, is what they argued: “ That tbe prisoner should turn on his benefactress and strike down the hand that had blessed him, was contrary to the conduct of men of sound reason.” We do not see any distinction in thought or idea between the two forms of expression; that by the court is perhaps more concise, but the one by counsel leaves the same impression on the mind. Says the court, “ enormity of crime is in itself no evidence of insanity; ” we did not say it was,
The 14th specification alleges error in the charge in calling attention to the appearance and conduct of the prisoner during the trial.
That this was altogether proper, it is only necessary to quote what was said by the learned judge: “Now, gentlemen, you will consider the evidence and all of it that bears upon the question of sanity, the evidence of the physicians on both sides, the evidence of those who knew him on both sides, the appearance and conduct of the prisoner before you, and the testimony as to his past acts.”
When it is kept in mind that the defence was epileptic insanity, a combination of physical and mental infirmities; that the prisoner was on the witness stand testifying to his own insanity ; it was right, in referring to the evidence bearing on this question, to direct the attention of the jury, without suggestion or comment, to the appearance and conduct of the prisoner as facts for their consideration along with the other testimony.
The 19th and 20th assignments are to the silence of the court on prisoner’s second and third points. The one asks the court to assume that the testimony of' the defence showing epilepsy is not contradicted, and then instruct the jury this fact of itself should be sufficient to raise a doubt as to prisoner’s criminal responsibility. The other asks the court to assume as a fact that those afflicted with this disease are easily excited to passion and revenge, accompanied with a morbid irritability, which must impair moral responsibility, and this of itse lf is sufficient to negative deliberation and premeditation.
The 21st assignment is to error of court in not defining manslaughter to the jury. There was not the semblance of evidence of any provocation, to say nothing of sufficient provocation, for the attack on deceased. It would have been just as pertinent to the issue raised for the court to have defined excusable homicide, and explained to the jury that if Sister Hildaberta bad made a furious attack on tbe prisoner, endangering bis life, the killing was excusable. The prisoner had a right to instructions on the law applicable to the evidence ; as there was no evidence which in the remotest degree pointed to the offence as manslaugher, the court committed no error in not noticing the point.
The 22d assignment alleges error in polling the jury. The prisoner has a right to a poll of the jury to ascertain whether each member concurs in the verdict; the exact words used by a juror in answering are not material, if they indicate clearly the assent of the individual mind to the verdict. The court, before tbe jury left the box, at the instance of the prisoner’s counsel, in a formal and legal manner ascertained that every juryman expressly assented to a verdict of murder of the first degree. This is all that the law requires, or the prisoner has a right to demand; therefore the verdict on which the judgment was entered was correctly recorded.
As to the 23d specification of error, alleging that, on motion for a new trial, the court did not by attachment compel the taking of certain testimony, and have it filed of record, so as to make it a subject of review on this appeal, we can only say tbe taking of the testimony was a matter wholly for the considera
The 24th assignment alleges that the court erred in refusing to entertain a plea of insanity at bar when prisoner was called for sentence.
The verdict of the jury on the 12th of September, 1892, found that at the time of the commission of the crime, on the 23d of June previous, the prisoner was sane. When called for sentence on the 12th of December, 1892, he filed a written averment that since the commission of the crime he had become, and was then, insane. There was not a single corroborative affidavit of friend, counsel, physician, or jail attendant accompanying the plea; nor a single specific fact stated which might move the court to further inquiry.
As is said in Laros v. Commonwealth, 84 Pa. 200, “ the plea at this stage is only an appeal to the humanity of the-court to postpone punishment until a recovery takes place, or as a merciful dispensation. If a case of real doubt arise, a just judge will not fail to relieve his own conscience by submitting the fact to a jury.”
We assume that in overruling this plea, the just and humane judge of the oyer and terminer found nothing to raise a doubt in his mind as to the sanity of the prisoner when he was called for sentence. If there was nothing to raise such doubt, it was his imperative duty to disregard a plea which could only serve to delay the judgment which justice and the law demanded should follow the crime with due promptness. So this assignment of error is not sustained.
The nature of the crime, the gravity of the consequences to the prisoner, his apparent friendlessness, all seemed to us to demand the most careful scrutiny of this record, that we might detect and correct any error that worked to his prejudice, if any had been made. We find none. He had a most careful and fair trial; the zealous efforts of able and astute counsel from a month before the trial, at every stage of the proceedings, down to the final hearing in this court. The learned judge of the oyer and terminer, in a most clear and impartial charge, submitted the