Commonwealth v. Dudash, 204 Pa. 124

Commonwealth v. Dudash

204 Pa. 124 | Pa. | 1902

Peb Ctjbiam,

The defendant was convicted and sentenced in the court below for murder of the first degree. He shot and killed, on October 16,1901, his companion and relative, Joe Fedelem. The principal circumstances connected with the killing are these: both were Slavs by race, and kinsmen ; they had come to this country together from Hungary and worked at the coal mines near Yatesboro; there had been quarrels and ill will between them in their native country, which was kept up after their arrival here ; on the evening of the 16th they met at a saloon in Yatesboro and commenced drinking together, when the old quarrel was renewed and angry words and threats passed between them; they separated about seven o’clock in the everting ; Fedelem, the deceased, went to his boarding house ; Du-*126dash and one Novak, a companion, went to a store, where by the advice of Novak, Dudash bought a revolver wherewith to shoot Fedelem; they started together for Fedelem’s boarding house where they found him; before they reached it they tested the revolver and planned how it should be used on Fedelem when they came to him; when they reached the house Dudash went in while Novak watched outside; Fedelem, when Dudash entered, was at supper with the boarding house keeper and his wife. Dudash at once commenced cursing Fedelem, went up behind him and twice shot him in the head; death resulted in a few hours; Dudash then went to his own boarding house, secured his money and valuables and fled to Northumberland county where he was arrested. There was no evidence contradictory of these facts. There was some evidence that Dudash had drunk considerably that afternoon, and that he was partially intoxicated, but there was no evidence whatever, that his mind was so clouded as to render him incapable of forming a specific intent to take life; in fact, all his declarations and conduct proved the very opposite. The evidence was very carefully and impartially submitted to the jury, so far as it bore on all the points made by the defense. Not only legal malice, which the law presumes from the preparation and use of a deadly weapon was shown, but express malice, special spite and ill will, towards the deceased was clearly proven.

Counsel for defendant asked the court to instruct the jurj', that if defendant became intoxicated at solicitation of deceased and by reason thereof was incapable of forming a deliberate and premeditated intention to take life, the offense would be reduced to murder of the second degree. The court refused the point as put, and said, it was immaterial whether defendant became intoxicated at solicitation of deceased, but that, if when he committed the act he was intoxicated to that degree.as to be incapable of forming a deliberate and premeditated intention to take life, the offense would be reduced to murder of the second degree. The answer was entirely correct; the point was so worded that the learned judge could not easily give a peremptory affirmative' or negative, but while refusing it, doubtless out of a tenderness for the prisoner, he stated his reason for refusing it, at the same time reiterated the very full instructions in his general charge on the effect of intoxication in reduc*127ing the grade of the crime. He could not have properly given any significance to the evidence tending to show, that Fedelem had solicited Dudash to drink that afternoon for it was wholly immaterial whether he had drunk because solicited by deceased or others; the question was, whether he was capable of forming the specific intent to take Fedelem’s life. The evidence clearly showed that he was. A careful examination of all the assignments wholly fails to show the semblance of error; they are all overruled and the record is remitted to the court below, that the judgment may be carried into execution according to law.