188 Pa. 429 | Pa. | 1898
Opinion bv
The assignments of error which relate to the charge of the court are without, merit. No undue prominence was given, as alleged, to the evidence for the commonwealth, and that in favor of the prisoner was fully and fairly presented. It was left to the jury to determine the mental condition of the prisoner at the time he committed the crime, from the proof of his mental condition immediately before and immediately after. No safer guide than this could have been given them. There was no evidence that his conduct had been violent or that it had been such as to indicate violence. The most that was shown was that on a few occasions, separated by long intervals of time, his conduct had been childish. When the statement in the charge that if the witnesses who had seen the prisoner the night before the crime was committed were to be relied upon, he was in his usual normal condition of mind, is considered in the connection in which it was made, there is no ground for doubt or misunderstanding.
The learned judge was inaccurate in stating that a witness, Thomas Underwood, had testified that he had employed the prisoner for four or five years. It appears that the witness said that he had known him for fifteen years and had employed him for four or five 'months. This employment was ten years before the trial, and the witness had in the mean time seen the prisoner frequently. On the question of his mental condition when the
The objection that the prisoner was not asked before sentence if he had anything to say why sentence of death should not be pronounced upon him must be sustained. This omission is not an error in the record merely, which might be amended. It was conceded at the argument that the question was not asked. That it must be asked, and that it must so appear on the record, has been repeatedly decided. The reasons for this requirement, since the prisoner may now be heard at the trial, are much less substantial than when it first became recognized as a right, but that it is a matter of substance, and not of form merely, has been settled: Hamilton v. Commonwealth, 16 Pa. 129; Dunn v. Commonwealth, 6 Pa. 384; Dougherty v. Commonwealth, 69 Pa. 286 ; McCue v. Commonwealth, 78 Pa. 185. In the opinion in the case last cited, it was said by Agnew, C. J.: “ It does not appear from the record that the prisoner was asked, before sentence, why sentence of death should not be pronounced upon him. This is a fatal error, and affects the merits of the case. It is necessary to ask the 2>risoner this, that he may have an opportunity, before the penalty of death be visited upon him, to plead in bar of the sentence any matter sufficient to prevent its execution.”
This omission does not however call for a reversal: Jewell v. Commonwealth, 22 Pa. 94; McCue v. Commonwealth, supra. The sentence only will be set aside.
The sentence of the court of oyer and terminer is set aside, and it is ordered that the record be remitted to that court with a procedendo, that the prisoner may be sentenced according to law.
