139 A. 836 | Pa. | 1927
Argued October 6, 1927. On December 11, 1926, at about 2: 15 a. m., Joseph E. Bell, a police officer in uniform and on duty, was shot and mortally wounded with a .32 caliber revolver in the hands of Frank Edward Lockett, the defendant, from which wound the officer died some days later. For this the defendant was convicted by a jury of murder of the first degree with the penalty of death, and from the judgment pronounced thereon he brought this appeal. *322 An examination of the record fails to disclose any reversible error.
The evidence for the Commonwealth was to the effect that at the time above stated the defendant rang the front door bell of house No. 2126 Lombard Street, Philadelphia, and enquired of a woman who came to an upper window if a certain girl was there, to which he received a negative answer. Officer Bell, passing by on his beat and hearing the bell and the conversation, told defendant he should not be around at that hour of the night disturbing people and, as they walked away a few steps, defendant drew a revolver and shot the officer in the abdomen, the bullet entering near the navel and passing backward and downward. Defendant immediately ran, threw away his cap and the revolver and when arrested shortly thereafter had on a different overcoat and another cap. At first he denied doing the shooting, also denied ownership of the cap and revolver; but some days later, when taken before a magistrate, admitted the shooting and identified the revolver and cap. His defense, supported by his testimony only, was that the officer forcibly took defendant's revolver and shoving it against him threatened his life and for fear of being killed he struggled with the officer for possession of the weapon, during which it was accidentally discharged with the result above stated.
Two days after the shooting Magistrate O'Brien went to the hospital and took the officer's affidavit as to the occurrence in the form of an ante-mortem statement. The admission of this as a dying declaration is the alleged error largely relied upon by appellant. The wisdom of the rule admitting such statements as evidence is well illustrated in the instant case, otherwise, as only the two principals were present, there might have been a miscarriage of justice. Such statement, however, is competent only when the declarant is under a solemn sense of a speedily approaching dissolution, without hope of recovery. This grave situation supplies *323
the place of an oath taken in open court, although the statement so given is not considered the equivalent of sworn testimony, as the declarant is not brought face to face with the accused and the opportunity to cross-examine is lacking. Whether the surroundings in any case warrant the admission of such statement is for the court, but, when admitted, its weight is for the jury under proper instructions. The admissibility of such declaration depends primarily upon the state of the declarant's mind. As stated by Mr. Justice STRONG, speaking for the court, in Kilpatrick v. The Commonwealth,
As above stated the only defense interposed was that the shooting was accidental. Upon that branch of the case the trial judge instructed the jury: "The defense in this case is that of an accident. The defendant, in his testimony, stated that as the officer and he struggled for the gun he took it from the grasp of the officer. And when a plea of that kind is entered, the defendant challenges and controverts the charges, and may show that the killing was accidental, and if the testimony satisfies the jury that the killing was the result of accident, the jury should acquit the defendant. Accidental killing is not such a defense as throws on the accused the burden of proving it by a preponderance of evidence. It still remains the duty of the Commonwealth to prove that the killing, though done with a deadly weapon, was *325
intentional or wilful. When the evidence, taken as a whole, raises a reasonable doubt in the jury's mind as to whether the killing was accidental or intentional, that doubt must be resolved in favor of the defendant." This put the defense in the most favorable possible light and rendered categorical answers to defendant's fourth and eighth requests unnecessary. Furthermore, those requests seem to have been based on the theory of self-defense, of which there was no claim, and neither accurately states the law on that subject. With reference thereto, it is sufficient to say that the commission of an assault is no excuse for murder and it is not sufficient to raise a doubt as to whether a defendant acted in self-defense; for, being an affirmative defense, it must be established by the weight of the evidence. If these requests were intended to refer to the theory of an accident, they had been sufficiently answered in the general charge and a repetition was not necessary: Com. v. Lewis,
It cannot be said that the charge when considered as a whole was prejudicial to the defendant. If an error was made in commenting upon the defendant's testimony, as to where he carried the revolver, the attention of the trial judge should have been called to it at the time and, as it was not, it is now too late: Com. v. Razmus,
We have examined the record, as is our duty under the Act of February 15, 1870, P. L. 15, to see if the elements of first degree murder were present and find they were, under the Commonwealth's evidence. This feature of the case is practically identical with that of Commonwealth v. Scott,
The judgment is affirmed and the record is ordered remitted for the purpose of execution.
