242 Pa. 394 | Pa. | 1913
Opinion by
The appellant comes here with three complaints. The first is of the refusal of the court below to strike from the indictment the record of the defendant’s conviction of rape. It contained two counts: one for murder, and the other for voluntary manslaughter. It further charged that the prisoner had been convicted of voluntary manslaughter in 1891 and of rape in 1895. The Commonwealth could not have anticipated with certainty a verdict of guilty of murder of the first degree, and the manifest purpose of inserting in the indictment a count for voluntary manslaughter, though not necessary, was to bring the prisoner, if convicted of that offense, within the provisions of the 182d Section of the Act of March 31, 1860, which is as follows: “If any person who has been convicted of any offense, other than murder of the second degree, for which the punishment prescribed by this code is imprisonment by separate or solitary confinement at labor, shall, after such conviction, be guilty of a similar offense, or of any offense for which such punishment is directed, he shall in either case, upon conviction, be sentenced to undergo an imprisonment, and be kept at labor not exceeding double the whole period of time which may, by the penal laws of this Commonwealth, be prescribed for the crime of which he is convicted.” If this provision is to be invoked, the previous conviction of the accused must be averred in the indictment, and the record of his conviction must be offered in evidence in support of that averment. In this way alone can the provisions of the statute be carried into effect: Rauch v. Commonwealth, 78 Pa. 490; Kane v. Commonwealth, 109 Pa. 541; Halderman’s Case, 53 Sup. Ct. 554. Counsel for the prisoner do not contend that it was error to refuse to strike out the averment as to his conviction of voluntary manslaughter, but complain of the refusal to strike out the averment of the conviction of rape in 1895. In making this complaint it is insisted that under the words of the
Appellant’s second complaint is that the Commonwealth was permitted to ask one of the witnesses for the defense on cross-examination whether he had been shortly before convicted of robbery and of assault and battery with intent to rob. The credibility of that witness as well as that of all the others called by the defendant was for the jury, and the question was properly allowed. It was not necessary for the Commonwealth to produce and offer in evidence the record of his prior conviction: Com. v. Racco, 225 Pa. 113.
The remaining complaint is of the inadequacy of the instructions on the law of self-defense and of the failure of the trial judge to refer in his charge to the testimony of certain witnesses called to show the vicious and quarrelsome disposition of the deceased and threats made by him against the prisoner. Standing alone the charge could fairly be regarded as inadequate upon the law of self-defense; but reading it in connection with the unqualified affirmance of the prisoner’s first, second and third points, carefully and elaborately prepared by his counsel, it is not to be so regarded. By those points the court was asked to instruct the jury that if they found from the testimony that the prisoner had killed the deceased under the circumstances set forth in the points, he acted in self-defense, and should be acquitted. These points and the answers to them are part of the charge, and we must so consider them upon complaint of its inadequacy. When they are so considered the complaint of the inadequacy of the instructions as to the law of self-defense is groundless. While it is the duty of a trial judge in a capital case to fully instruct the jury upon the law applicable to the facts without
After due consideration of all the assignments we find nothing in any one of them calling for a reversal of the judgment. It is, therefore, affirmed and the record remitted for the purpose; of execution.