280 Pa. 59 | Pa. | 1924
Opinion by
John A. Daily, appeals from a sentence to death for the murder of his wife, Catherine Daily, whom he killed on July 16, 1922, at about nine o’clock in the evening.
Defendant and his wife occupied a room on the second floor of a lodging house in the City of Pittsburgh; they had been together in their living quarters for about three hours on the evening of the tragedy when others in the building heard them quarreling; this was followed by three pistol shots, apparently behind the closed door of the Daily room, and then two more shots, which sounded as though they had been fired in the hallway just outside the • door; immediately after the last discharge, Mrs. Daily was seen rushing down the stairway, and her hus
Appellant filed ten assignments of error, only two of which need be considered at large; tbe others, asserting that tbe charge was inadequate on matters of law and partial to tbe Commonwealth on matters of fact, are so lacking in merit they require no discussion.
Tbe first of tbe assignments for consideration, being tbe third in number, calls attention to a passage from tbe charge as follows: “Now, if that were all you bad in tbe case, you would have a comparatively simple question to solve as to whether you believe this testimony and are satisfied, beyond a reasonable doubt, that Daily did not kill bis wife.” It is complained that this constitutes a misinstruction on tbe law which did material barm to defendant.
In an opinion refusing to disturb tbe verdict, the trial judge states bis belief that be said “did kill” instead of “did not kill,” and suggests rather convincing reasons to show tbe likelihood that tbe inclusion of tbe “not”
Early in the charge the jury were told that the burden was on the Commonwealth to show defendant killed his wife, that the fact of the killing must be proved beyond reasonable doubt, and if the State failed so to establish that fact, the prisoner would have to be acquitted. The trial judge next outlined the proofs against the accused, ending his remarks in reference to this evidence with the words now complained of; immediately following these objectionable words, he proceeded to tell the jurors that, in passing on the “Commonwealth’s testimony,” they must consider also the other evidence in the case which made for defendant, and that the “main question,” on the entire body of proof, was whether the jury had “a reasonable doubt that he [defendant] killed her [the deceased].” Then after outlining the testimony produced by defendant, the court again stated: “As I have already said to you, perhaps to the extent of wearying you, if you have a reasonable doubt that Daily killed his wife, then you should render a verdict of not guilty; if you have not, if you are satisfied beyond a reasonable doubt that he did kill her, then you must determine of what he is guilty.” The language just quoted marks a stage in the trial judge’s instructions where he entered on the law, whereas the excerpt quoted in the assignment under consideration contains words which were spoken, as above shown, when the court was neither dealing with the law nor instructing on the consequences of the jury’s findings of fact.
In those portions of the charge which purport to cover the legal aspects of the case, the instructions on the point now in hand are at all times consistent and correct.
Under the circumstances thus presented, the rule announced in some of our cases, and relied on by appellant, that, “Where an erroneous instruction consists of a palpable misstatement of the law, it is not cured by a conflicting......one which correctly states the law on the point involved, unless the erroneous instruction is expressly withdrawn from the jury,” has no application. This rule has reference to instructions on the law, strictly speaking, and has no controlling force in a case like the present where, as explained above, the misstatement occurred when the judge was dealing with the subject in hand as a matter of fact rather than as a point of law, and where he warned the jurors they were not to accept, as the issue involved, the question at that time stated (or misstated) by him. Moreover, in a case like the one before us, where the evidence against defendant is so
The next complaint for discussion, that of abuse of discretion by the court below in refusing to grant a new trial, involves matters aliunde the trial itself and requires consideration of what occurred when the prisoner was called for sentence. The trial judge declined to certify the stenographer’s notes of alleged facts stated by or on behalf of the prisoner just prior to sentence, when he was making an effort to avoid final judgment and to obtain an order for a new trial; the court also refused to certify certain papers then referred to by defendant, which he tendered to corroborate his allegations concerning what he asserted to have been a false defense, put in at trial against his protest. That these offers and the court’s rulings in reference thereto might appear for purposes of review, defendant asked for and obtained a writ in the nature of a certiorari sur diminution of record (Com. v. Daily (No. 1), 280 Pa. 57), thus the stenographer’s notes, accompanied by copies of the papers referred to by the prisoner, came to this court, with restricted certificates by the trial judge and a statement that, in his opinion, they did not properly constitute parts of the record. As to this, when one convicted of a capital offense brings his case to a higher court, assigning as error an abuse of discretion by the original tribu
It is not a novel occurrence for one convicted of crime, when called for sentence, to attempt to discredit the defense previously offered, or to tell the court that he lied at trial and if given a second chance will offer a truthful and better defense. This occurred in the recent case of Commonwealth v. Meleskie, 278 Pa. 383, 385-6, as stated in the opinion there filed; but a conviction of murder of the first degree was sustained. There is no reason for granting a retrial, and the law does not require it, where, as here, on consideration of the new story offered by defendant, the judge who saw and heard all the witnesses, including defendant himself, feels that, in view of the undenied details of the Commonwealth’s case, as established at the trial, and of the physical facts attending the homicide, the prisoner, even on the second defense tendered, ought, in the proper administration of the law, to be convicted of murder of the first degree; and where the appellate court, after reading the entire record, concurs in that opinion, as we do in this case, it cannot hold the court below erred in refusing a new trial.
Defendant now admits he did the shooting; the testimony at trial, not since denied, shows he poured five separate shots into the body of his victim, and, even after that, started to pursue her with the revolver in his hand.
The fact that counsel for defendant stood silent while the prisoner accused him of having offered a false defense, is of little significance on this review, for, as suggested at argument, he may have conceived it as his professional duty not to contradict a client pleading for his life; or, again, counsel may have reasoned that the accusations made against him by the prisoner called for no denial, since the defense at trial coincided with the story told by the latter to the police when first put under arrest, and before he, the attorney, was connected with the case.
The assignments of error are overruled, the judgment is affirmed, and the record is remitted for the purpose of execution.