Commonwealth v. Garrito

222 Pa. 304 | Pa. | 1908

Per Curiam,

The first assignment of error is to the overruling of the appellant’s reason for new trial that a juror had before the trial expressed the opinion that defendant was guilty and should be hanged. It appears that the juror on his voir dire when first called, admitted that he had formed an opinion but testified that he could disregard such opinion and render a verdict on the evidence. This made him a-competent juror under all the cases. On the motion for a new trial, however, an affidavit was presented averring not only the • expression by the juror of an opinion of the prisoner’s guilt, but an intention to hang him if he could get on the jury. The learned judge investigated this charge, and found it not sustained. It is sufficient to say that the whole subject of new trial including alleged misconduct of jurors is largely within the discretion of the trial judge and his conclusions upon disputed facts will not be disturbed except for serious and manifest error.

The second assignment is that the evidence does not warrant a conviction of murder of the first degree. This assignment seems to be founded on the provision of the Act of February 15, 1870, P. L. 15, requiring the Supreme Court to review the law and the evidence and “to determine whether the ingredients necessary to constitute murder in the first degree shall have been proved to exist.” But this review is limited to the inquiry whether competent evidence has been given which if believed will sustain the conviction. Whether it shall be believed or not is exclusively for the jury: Com. v. Morrison, 193 Pa. 613.

The objection on which the assignment is based in the present case is that the witness furnishing the testimony which established the degree of the crime was not worthy of belief. But the credibility was for the jury and is not within our province.

Judgment affirmed and record remitted for purpose of execution.