175 A. 418 | Pa. | 1934
Roy A. Mull and Grace Mull, husband and wife, together with their son Elmer Mull, were indicted and tried for the murder of one Margaret Schwickrath; the court directed a verdict in favor of Elmer Mull, but submitted the case against the others to the jury, which found them guilty of murder of the second degree. From the judgment and sentence they appealed, assigning as error the refusal of their motion for binding instructions, based on the ground that the venue as laid was not proved, and the refusal of the trial court to charge, as requested by them, that unless the jury found the killing to have been committed within the county they should be acquitted.
The assignment which complains of the refusal of binding instructions cannot be sustained. True, the only proof as to the place of killing was that the body was *426
found in Allegheny County, with a quantity of blood beneath it, indicating that death had occurred not long before the body was placed at the spot where it was discovered. But this was sufficient evidence to support a finding that the homicide was committed within the county (Com. v. Costley,
However, defendants' assignment complaining of the refusal of the trial judge to charge the jury that unless they found the deceased to have been killed in Allegheny County their verdict should be not guilty is well taken and requires a reversal of the judgment. This refusal was clear error; the locus of a crime is always in issue, for the court has no jurisdiction of the offense unless it occurred within the county of trial, or unless, by some statute, it need not — and there is no such statute applicable here. Section 49 of the Act of March 31, 1860, P. L. 427, commonly referred to as the Journey Act,* has no bearing on the instant case, because there is no evidence to show that this crime was committed in a conveyance *427
or during a journey. In the present case it was of particular importance that the matter of locus be called to the jury's attention. Although the defense was that the defendants did not commit the crime, rather than that it occurred outside the county, the Commonwealth's proof as to the place of commission was very weak; the jury might well have believed from the evidence that the deceased met her death in the neighboring county of Westmoreland, where she was last seen alive. As we have said, the only proof that the crime occurred in Allegheny County was that the body was found there; while this would have been sufficient to support a finding by the jury that that county was the scene of the crime, it cannot be categorically affirmed that they would have done so if this question had been called to their attention by the court. The venue being substantially in issue, it was error for the trial judge to refuse defendants' request to charge as to it: Glover v. State,
The Commonwealth argues, however, that the conviction was conclusive that the crime was committed at the place averred in the indictment (citing Com. v. Gurley,
The judgment of the court below is reversed and a venire facias de novo is awarded.
Mr. Justice SIMPSON dissented.
"In order to obviate the difficulty of proof as to offenses committed during journeys from place to place, in any indictment for felony or misdemeanor committed on any person or on any property, upon any stage coach, stage, wagon, railway car, or other such carriage whatever employed in any journey, it shall be sufficient to allege that such felony or misdemeanor was committed within any county or place through any part whereof such coach, wagon, cart, car or other carriage shall have passed in the course of the journey during which such felony or misdemeanor shall have been committed; . . . . . . and every such felony or misdemeanor . . . . . . shall and may be inquired of, tried, determined and punished in the county or place within which the same shall be so alleged to have been committed, in the same manner as if it had actually been committed therein." *429