274 Pa. 108 | Pa. | 1922
Opinion by
This appeal by defendant is from sentence on conviction of murder of the first degree. On the afternoon of June 28,1921, the defendant, Harry Lessner, and a confederate named George Jackel, entered the jewelry store of S. Bugay, 2327 South Seventh Street, Philadelphia, and with drawn revolvers attempted to hold up and rob Mrs. Bugay, who was in charge of the store; her screams, however, brought the neighbors to her assistance before the robbery was completed. The robbers being frustrated by men entering the store put their revolvers away and started for the door, but, being intercepted, again drew their weapons and forced their way out, where they
The theory of the defense is that the gun was accidentally discharged in a struggle for its possession and not fired at the deceased or at any one. Such theory, even if true, of which there was but slight evidence, would constitute no defense. The statute says: “All murder......which shall be committed in the perpetration of, or attempt to perpetrate, any arson, rape, robbery or burglary, shall be deemed murder of the first degree.” In the instant case, the shooting, although done in front of the store, was so connected with the attempted robbery as to form a part of it. The mere putting away of the weapons, on the approach of the neighbors, and immediately redrawing them did not constitute a break in the chain of events; therefore, we must treat this case as a homicide committed in an attempt to perpetrate a robbery, and, so treating it, the defense of an accidental killing is without avail. The gun that fired the fatal shot was in the defendant’s possession for the criminal purpose of robbery and that the discharge was unintentionally caused while struggling with his victim, or with a third party who came to the latter’s assistance, is immaterial. Under the statute it is murder of the first degree although the killing was casual and unintentional: Wharton on Homicide (3d ed.), p. 175, and note; and, “The term ‘murder’ as used in such statutes includes all kinds of unlawful killing which constituted murder at common law, and is not confined to such as were committed with a deliberate and premeditated design to kill”: Ibid. It is the fact of killing in the perpetration of or an attempt to perpetrate the crime which brings the case
For the defense a Mr. Lincoln testified he struck defendant in the face before the shot was fired, which was corroborated by another witness; in calling the jury’s attention to this testimony the trial judge did not err in referring to the fact that defendant’s written confession, made on the day of the occurrence, set up no such claim.
In referring to a part of the confession the trial judge said “and this is without contradiction”; but that was not a reference to the failure of the defendant to testify, as it might have been contradicted by other evidence, and therefore not a violation of the statute prohibiting such reference: Com. v. Chickerella, 251 Pa. 160.
What was said in the general charge as to reasonable doubt, while meagre, was not erroneous and, as supplemented by an affirmance of defendant’s request upon that question, leaves no just cause for criticism. Where there is no incorrect statement of the law in the general charge or in the points and answers, and taken together they sufficiently cover the case, there is no cause for reversal therefor.
Error is assigned to the following excerpt from the charge, viz: “The law of Pennsylvania has made wilful, deliberate and premeditated murder a capital crime. In this case a murder was committed after an attempted
A felonious homicide is presumed to be murder and not manslaughter, and, as there was nothing shown to reduce it to the latter offense, the trial judge properly defined the two degrees of murder and ignored manslaughter. And although a homicide committed in the attempt to perpetrate a robbery is made by statute a capital ofíense and the jury were correctly so instructed, yet they were repeatedly told, and properly so, that in case of conviction it was for them to fix the degree of the crime: Com. v. Flanagan, 7 W. & S. 415, 418; Lane v. Com., 59 Pa. 371; Shaffner v. Com., 72 Pa. 60; Com. v. Ferko, 269 Pa. 39.
Having shown a murder committed in the attempt to perpetrate a robbery, it was not necessary for the Commonwealth to go further and show other elements constituting murder of the first degree; nor for the court to charge that the burden was upon it to do so. “The act in which the malefactor was engaged was of such a nature, so deep a crime, involving such turpitude of mind, and protection against which was so necessary to the peace and welfare of all good citizens, that our legislature considered the intention as of no consequence, and accordingly decreed death to be the penalty of such offenses”: Com. v. Flanagan, supra. In other words, he who causes the death of another, while in the perpetration of such heinous crime, forfeits his own life, although the
While leaving the question of the defendant’s guilt and the degree of murder to the jury, the trial judge was within his rights in expressing the opinion that if they believed defendant committed the offense, as stated by the Commonwealth’s witnesses, they would be warranted in finding him guilty of murder of the first degree; for where there is ground to justify it, a judge may express his opinion to the jury so long as he leaves them free to act: Com. v. Cunningham, 232 Pa. 609; Com. v. McGowan, 189 Pa. 641; Com. v. Orr, 138 Pa. 276; Johnson v. Com., 115 Pa. 369; McClain v. Com., 110 Pa. 263.
The assignments of error are all overruled; the appeal is dismissed and the record is remitted for the purpose of execution.