268 Pa. 434 | Pa. | 1920
Opinion by
Defendant appeals from a conviction of murder of the first degree. The questions raised by the assignments of error relate to the admissibility of evidence and to parts of the charge.
The first and second assignments complain of the action of the trial judge in the admission in evidence (and in referring to it in his charge) of a declaration of Sposito, the victim of the crime, made to his wife when leaving home about an hour previous to the time he met his death to the effect he intended to meet defendant and Frank Renda, the two being subsequently jointly indicted and the latter acquitted, who desired to see him at a near-by saloon. Deceased was seen shortly after leaving his home in company with Palma and Renda near the place where the crime was committed, thus showing his express intention was carried out. The defense being an alibi, the evidence in question undoubtedly had considerable weight with the jury, especially as the trial judge specifically referred to it in his charge. The Commonwealth contends the declaration was admissible as part of the res gestse.
The general rule is that when the motive, intent or purpose in doing an act is in question, whatever is said or done at the time from which a motive may be inferred, or which tends to show the intent or purpose with which' it is done is part of the res gestse; accordingly, if an act
In the application of the above rule it is, of course, necessary that the declaration be made at or about the time of doing the act, that is, coincident or contemporaneous with the act of departure. If made at a time previous to leaving, the declaration amounts merely to a statement of intention to do a future act and is not competent as explanatory of the act itself, inasmuch as the person in the meantime may have changed his purpose. An illustration of the distinction between the case of declarations made at the time of departure, as in the cases above cited, and those made at an earlier time, is found in Chicago & Eastern Ill. R. R. v. Chancellor, 165 Ill. 438. There declarations of intention to visit a distant city were made an hour before the time for departure of the train and at the time declarant was preparing her children for school. In holding such decía
The declarations offered in the present case were made at the time deceased was on the point of leaving home and were competent as explanatory of the purpose of his departure.
The third, fourth and seventh assignments allege the charge was inadequate and unfair in that it referred fully to the evidence and theory of the Commonwealth, while that of defendant was insufficiently discussed. Before commenting on the evidence the trial judge stated it was not his intention “to go over all the evidence” and that it was the duty of the jury to consider the testimony of every witness. The testimony offered on behalf of the Commonwealth was circumstantial in character and considerable in volume, while, on the other hand, the defense being an alibi was necessarily simple in character and the witnesses called to establish defendant’s presence at another place at the time the crime was committed not numerous. In referring to the defense the court said: “The defendants tell you that they were not
The fifth assignment complains of the language of the court in referring to the question of motive. Evidence had been given tending to show defendants were members of a society which had condemned deceased for acts
The sixth assignment complains that the trial judge, in referring to a witness, Baggetti, called by the Commonwealth, who had been indicted as an accessory to the crime, said: “There is nothing in the evidence in the case, from the beginning to the end, which connects Baggetti with the murder of Sposito, and you may come to the conclusion — it is all a matter for you — that this testimony is not open to the same Mnd of attack as the testimony” of other named witnesses. It was shown that Baggetti was under indictment for the apparent purpose of attacking his credibility. As the indictment was pending at the time of the trial of defendant, it was not improper for the trial judge, if it developed from the testimony that there was nothing to implicate the witness, to refer to this fact, in view of the attack on his credibility, by showing the pending indictment. The court left to the jury to say whether or not there was testimony in the case connecting the witness with the crime and affecting his credibility on the ground stated.
The assignments of error are overruled, the judgment of the court below affirmed and the record remitted for the purpose of execution.