69 A.2d 145 | Pa. | 1949
The defendant was convicted of murder in the first degree with penalty of death on each of two separate indictments charging him with murder for the killing of Koche Atzeff and Boris Mioff. He filed motions for a new trial and also, belatedly, motions in arrest of judgment. The learned court below denied all motions and entered judgments of sentence on the verdicts. The defendant took these appeals and has filed twenty-one assignments of error. These assignments are covered by eight questions of law which the appellant has stated for argument and which we shall consider seriatim.
The first question, thus raised, is whether the Commonwealth offered sufficient competent evidence to warrant verdicts of murder in the first degree. The defendant admits having fired the fatal bullets but contends that he did so in self defense; or, if not in self defense, that he acted under heat of sudden passion and without malice, wherefore the crimes could not be more than voluntary manslaughter; or, even if the homicides were murder, that they were not willful, deliberate and premeditated killings, wherefore the crimes did not rise higher than murder in the second degree.
While the testimony adduced by the defendant conflicts in certain particulars with that offered by the Commonwealth, such conflicts did no more than raise issues of fact which were for the jury to determine. From the evidence, the jury could have found and, in the light of the verdicts, presumably did find the material facts to be as follows.
The defendant, George Minoff, age 51, and the two victims, Koche Atzeff, age 24, and Boris Mioff, age 32, were members of the Macedonian-Bulgarian Orthodox Church of Steelton, Pennsylvania. For some twenty years, the congregation had been rent by schism into two jarring sects. The defendant belonged to the one *290 group and the victims to the other. The bad feeling between the two divisions over the doctrinal teaching or tenet that separated them was very intense. As a consequence of the internal dissension, the church had been without a priest since 1944 and was served only by a visiting priest from time to time. The selection of a full-time priest, with which the members of the church were concerned in late 1947 and early 1948 served to promote further differences and bitterness. A congregational meeting was called for Sunday afternoon, April 4, 1948, to consider matters concerning the call of a priest from Sofia, Bulgaria, whose departure for this country had apparently been delayed through a misunderstanding allegedly engendered by some of the members of the church. The meeting which was held in the church hall, located in a separate building near the church, was largely attended. The members of the one group sat on chairs along one side of the hall while the members of the other group, also sitting on chairs, were along the other side of the hall. The proposed reading of a letter from the priest in Sofia and, especially, whether a certain portion or the whole of that letter should be read provoked heated discussion. While the argument was going on, one George Patoff, a member of the defendant's group, was on his feet objecting to the course being followed in presenting the letter. Lazo Atzeff, father of Koche, one of the victims, went over from the side of the hall where his group were seated to where Patoff was standing and asked him to be quiet. Patoff told him to "get out." Koche and his brother, Boris Atzeff, moved across the hall and stood by their father. One Nikolo Taleff, a friend of the defendant and a member of his group, raised a chair and attempted to strike Boris Atzeff. Boris struck Taleff, knocking him to the floor. Up until then, the defendant, who was sitting along the wall on the side of the hall occupied *291 by his group, had made no move. He was some twenty to thirty feet from where the altercation was going on. He arose and began pushing toward Patoff and the Atzeffs. Making passes with his arms, he moved closer to the gathering. Once there, he pulled a thirty-eight caliber revolver from under his coat which he fired without warning and shot Koche Atzeff who died almost instantly. When Koche had fallen to the floor, Boris Mioff bent over him apparently to render assistance; and, while Boris was in that position, the defendant fired a second shot, fatally wounding Boris who died four days later. It was not until after the second shot had been fired by the defendant that anyone laid hands upon him. He had carried the revolver underneath his coat and sweater on his left side between his trousers and his shirt and, from there, withdrew it to fire the fatal shots. The defendant had a permit to carry a revolver, which he testified he always did in going to and from his work in his brother's restaurant, the brother having been attacked and robbed some time before. The defendant had been in the restaurant a short while before going to the congregational meeting and had intended to return there later that afternoon to work for about four hours. He took the revolver with him to the meeting, however, although he did leave in the restaurant his Sunday papers which he had just purchased at a drug store.
The evidence in the case, supporting the verdicts, contains the ingredients of murder in the first degree. The homicides were felonious. The defendant was an aggressor and could not claim he acted in self defense: see Commonwealth v. Zec,
The appellant next complains that the trial judge erred in not withdrawing a juror on the defendant's motion because a talesman, when testifying on his voir dire as a prospective alternate juror, had stated in the presence of the twelve jurors, already sworn, that he had formed an opinion as to the defendant's guilt and "figured he was guilty." The quoted remark was abruptly volunteered as a part of the juror's answer to a question by counsel for the defendant as to whether he had ". . . *293
formed and expressed any opinion as to the guilt or innocence of this defendant." The juror answered, — "Yes; I figured he was guilty — ." The answer was broken off by the learned trial judge's immediate interjection, — "No, no. We instruct the jury to disregard that statement entirely." Counsel for the defendant insisted that irreparable damage had been done and the court then said "Go ahead and make whatever motion you want." Whereupon counsel moved for the withdrawal of a juror, which motion the court denied but again instructed the jury as follows: "The juror inadvertently made a statement as to his opinion gained from reading the newspapers. I instructed at that time, and now instruct you again, to completely disregard the statement which the juror made. The responsibility of the decision in the case will be your responsibility, to be based upon the evidence and the evidence alone." The juror was challenged by the defendant for cause and the challenge was sustained. Certain it is that what the learned trial judge did in this connection was the utmost that could have been done in the circumstances to eradicate any possible harm from the inadvertent remark; and it was all that needed to be done: seeCommonwealth v. Dreamer,
There is not the slightest merit in the appellant's third contention that the trial court erred in refusing to allow the defendant to show in cross-examination of a Commonwealth's witness more of the background *294 of the church dispute. The extent of cross-examination at any time rests in the sound discretion of the trial judge. But, the important thing here is that the defendant was given plenty of leeway in cross-examining witnesses for the Commonwealth and was not precluded at any time from offering in his own case anything relevant and material. Indeed, the church dispute was gone into by both sides in far more detail than was necessary to a just determination of the issues.
A further contention of the appellant is that the trial court failed to instruct the jury adequately with respect to the effect and purpose of testimony elicited by the district attorney in cross-examining a witness for the Commonwealth after a plea of surprise. When the district attorney asked leave to cross-examine the witness because of his contradictory testimony, the learned trial judge stated in the hearing of the jury, — "Your right to cross-examine is only to destroy the effect of the testimony given, not for the purpose of establishing any facts." And, again, in the charge to the jury, the trial judge, after referring to the testimony of this witness given on direct examination and the fact that the Commonwealth had cross-examined him as to contradictory statements, submitted the matter to the jury in the following manner: "Whether that discredits his testimony is a matter for you to determine." Counsel for defendant made no request for any further instructions in such regard. Nor did the defendant suffer any harm thereby. The brief for the appellant incorrectly states that the facts brought out by the district attorney in his discrediting cross-examination of the witness for the Commonwealth ". . . is the only testimony in the record which supports the Commonwealth's claim that the defendant struck or pushed the members of the [deceaseds'] group first." The printed record shows that another witness for the Commonwealth, George Mioff, *295 testified (p. 169a) as follows: "Q. Up to this time [i.e., when defendant drew his revolver] did you see anybody do anything at all to George Minoff? A. Nothing, absolutely nothing, nobody touched him at all."
The appellant charges error in the trial court's admission of testimony of an alleged threat by the defendant to harm a member of the church at a meeting six months before the offenses charged in the indictments and further error in the court's later refusal to strike out such testimony. The witness, one Achko Dimoff, testified that at a congregational meeting in the hall in September 1947, at which the bishop was present and the calling of the priest from Bulgaria was the subject of discussion, he (Dimoff) and Traiko Minoff, a brother of the defendant, had some words and that, as Dimoff left the hall, Traiko and George Minoff (the defendant) grabbed him, George saying that he was going to fight and that "I don't have my gun with me. If I would have my gun I would shoot." Several persons took hold of Traiko and George Minoff to restrain them, one such being Boris Mioff, one of the later victims, and another a brother of Koche Atzeff, the other victim. Evidence of a prior offense or occurrence, if related to the offense for which the defendant is on trial, may be admitted to show malice, motive or intent. See Shaffner v. Commonwealth,
It was not error for the court to read to the jury, along with the defendant's requests for instructions that were affirmed, those that were refused. It is the usual and, ordinarily, the better practice for a trial court not to read refused requests for instructions (see Commonwealth v. Clark,
The appellant's seventh question relates to what had been the subject matter of his motions in arrest of judgment, viz., the form of the verdicts. The complaint lacks substance and overemphasizes formality. When the jury returned with its verdicts, the following took place, — The Clerk: "Jury, please rise. How do you find George Minoff, guilty of the felony and murder, or not guilty?" The Foreman: "Guilty." The Clerk: "The penalty?" The Foreman: "Death." It is obvious that the verdict, as thus first given orally by the foreman, did not specify the degree of murder whereof the jury found the defendant guilty; and, in that respect, the verdict was deficient: see Act of 1939, supra; and People v. Lee Yune Chong,
The appellant's last point is raised in this court for the first time. On the basis of our recent decision inSchofield Discipline Case,
Judgments and sentence affirmed.