Opinion by
The defendant, Silas Gibson, and his wife, colored people, were married in April, 1920, and resided in Bridge-water, Beaver County. Beсause of his causeless jealousy they lived unhappily and she occasionally returned to her mother’s home on account of his abuse. This she did on Saturday, June 25, 1921, and the next day Gibson came to the mother’s house, spent the afternoon with his wifе and besought her not to cause his arrest for some act of violence he had inflicted upon her. He went away about six o’clock, armed himself with a revolver and returning, encountered his wife and her mother as they were walk
The first assignment of error, complаining of the alleged misconduct of the assistant district attorney who conducted the prosecution must be sustained. The defense was insanity and defendant’s sister, Mrs. Dora Grimsley, a witness in his behalf, on her direct examination, testified, inter alia, as follows, viz: “Q. Did you hеar him [the defendant] make any statements as to people being against him ? A. I did. Q. What would he say about that? A. He would say that еverybody was against him. Q. Did he say that of the members of his own family? A. Yes, sir.” Then on cross-examination, referring to defendant’s attitude tоward members of his family, the assistant district attorney asked: “Q. Was that after he had been convicted of shooting your brother?” This wаs promptly objected to by the defendant’s attorney, who moved for the withdrawal of a juror. The trial judge refused the motion but cautioned the jury to disregard the statement involved in the question. The statement, however, brought directly to the knowledge оf the jury, not only the fact that defendant had shot his brother but also that he had been convicted of it. This was a violation of the fundamental principle that in the trial of a prisoner for one crime the Commonwealth cannot introduce evidеnce of his guilt of another independent crime. A recent case to that effect is Com. v. Haines,
The mere fact that the sister had testified in chief that1 defendant had said everybody was against him, including his own family, did not excuse the injection of the fact of his former conviction; and, as defendant had neither offered himself as a witness nor put his character in issuе, it is difficult to find even a plausible excuse for dragging it in. As the only defense was insanity, proof of a prior independent crimе might not1 prejudice the defendant in the mind of a lawyer but it naturally would in that of a layman, who would thenceforth look upon him аs a hardened and desperate criminal. On a retrial, no reference should be made, directly or indirectly, to the fоrmer crime or conviction therefor, unless introduced by the defendant.
The other questions do not seem to require extеnded discussion. It was proper to permit the Commonwealth’s experts, who had interviewed the defendant for twenty or thirty minutes in the jail, to express an opinion as to his sanity, as it also was to permit them to state that in the course of the interview thеy discussed the offense here in question.
On behalf of defendant an offer was made to prove statements made by his wife, rеferring to his conduct and bearing upon his mental condition. These were properly rejected, as hearsay evidеnce, and were none the less so because made by the victim of the crime. In other words, the declarations of one thereafter slain, as to the mental status of the slayer, are no more competent as evidence than would be like declarations of a third party. Expressions accompanying an act may be shown as indicating what was in the mind оf the actor, on the ground that they are res gestae of the act in question. For example, in the celebrated Webster murder case (Webster v. Com., 5 Cushing [Mass.] 386) the Commonwealth was permitted to show that as Dr. Parkman, the deceased,
There is no substantial ground for the comрlaints regarding the charge of the trial judge. The following sentence of the charge, however, as printed, viz, “This element оf malice aforethought is the distinguishing mark of murder in the first degree,” is inaccurate. Malice aforethought is an element of murdеr in either degree and distinguishes it from manslaughter; while an intent to kill is the main distinction of murder in the first from that of the second degree. That the trial judgе had the correct distinction in his mind clearly appears from the charge as a whole. This, and other inaccuraсies, if any, can be corrected on a retrial.
Murder by lying in wait involves a watching and secrecy (State v. Olds,
The first assignment of error is sustained and thereupon the judgment is reversed and a venire facias de novo awarded.