269 Pa. 39 | Pa. | 1920
Opinion by
A jury found the appellant guilty of murder of the first degree, and, on this appeal from the judgment which followed, his complaints are: (1) of the instructions to the jury, which he alleges amounted to a peremptory direction to render a verdict of guilty of murder of the first degree or an acquittal; and (2) of the refusal of a new trial on the ground of after-discovered evidence.
It is said that at the threshold of his charge the trial judge charged: “When you were empaneled and after you had each taken your oath as to your duties, you were instructed that you should say by your verdict of what the defendant was guilty, or whether he was not guilty; whether he was guilty of murder in the first degree, murder of the second degree, or voluntary manslaughter or not guilty.” If this instruction was given to the jury, we are unable to discover from the record when or by whom it was given. The trial judge merely refers to it without adopting it as part of his charge, for in his instructions to the jury he unmistakably took from them the determination of the degree of the guilt of the accused. There is not a word in the charge telling them that if, after duly considering all the testimony in the case, they found the prisoner guilty of felonious homicide, they should fix the degree of his guilt. On the contrary, they must have understood the court’s instructions to mean that, if they convicted, they must convict of murder of the first degree. We proceed to quote all that was said to them as to their duty, if they should find the prisoner guilty: “The charge here is that, in the course of a robbery, being committed or about to be committed by the defendant, he shot and killed Rachel Bress; and the statute as applied to that charge is that 'all murder which shall be committed in the perpetration of, or attempt to perpetrate any robbery, shall be deemed murder of the first degree.’ So your knowledge, which you all have of the ordinary murder
The repeated instruction to the jury that if the prisoner killed the deceased in the perpetration of a robbery, or in attempt to perpetrate it, he.was guilty of murder of the first degree, was abstractly correct, for the statute
The jury were first told that the charge against the prisoner was murder of the first degree, and then were repeatedly told that, if the homicide was committed in perpetrating, or attempting to perpetrate, a robbery, the prisoner was guilty of murder of the first degree, without even an intimation to them that the statute expressly imposed upon them the duty of fixing the degree of guilt, no matter what was charged or proved by the Commonwealth. They had the undoubted power to fix a lower degree to the crime than the statute itself provides, and if they had done so, the court could not have
Shaffner v. Com., 72 Pa. 60; McMeen v. Com., 114 Pa. 300, and Com. v. Sheets, 197 Pa. 69, are cited by counsel for tbe Commonwealth as authorities in support of tbe correctness of tbe trial judge’s instructions, but they are not to be so regarded, for in each of tbe three cases, though there was an expression from tbe court as to what it thought tbe degree ought to be, in view of the statutory definition of murder of tbe first degree, tbe jury were distinctly instructed that it was for them to determine tbe degree of guilt.
As tbe judgment must be reversed and a new trial awarded for tbe reason stated, it is unnecessary to consider tbe second assignment of error. Tbe judgment is reversed and a venire facias de novo awarded.