39 Pa. Super. 173 | Pa. Super. Ct. | 1909
Opinion by
The appellant has not printed in his paper-book the indictment upon which he was tried in the court below, but we may gather from the charge of the court and the printed argument of the counsel that the indictment contained three counts, the first charging felonious assault and battery, the second count charging that the defendant did cut, stab and wound the prosecutor, being drawn under sec. 98 of the Act of March 31, 1860, P. L. 427; and the third count charging an assault and battery. That part of the charge of the court which is the subject of the first specification of error withdrew the first count of the indictment from the consideration of the jury, but it did not, as contended by counsel for the appellant, withdraw from the consideration of the jury the third count of the indictment, for the language of the court in withdrawing the first count and directing the jury what they were to consider was express and positive; “leaving the other two counts, namely, aggravated assault and battery and simple assault and battery.” While the court in designating the offense charged in the second count used the term “aggravated assault and battery,” which while well understood in common parlance is not strictly speaking a legal definition of any offense, the jury could not have understood it as referring to anything but the offense which was in legal language charged in the second count of the indictment. The appellant certainly was not injured by the action of the court in withdrawing from the consideration of the jury the first count which charged the act as a felony, a conviction under which would have been a matter more serious than was the charge upon which he was found guilty. We have examined the evidence and are by no means convinced that a conviction of the more serious offense might not have been sustained. The language of the court in submitting the
The only question of fact upon which a direct and positive issue was raised by the evidence in the case was as to whether this defendant did with a knife stab the prosecutor. That question was in a fair, full and adequate charge submitted to the jury. The jury were, in effect, instructed that unless they found beyond a reasonable doubt that the defendant had with a knife stabbed the prosecutor, the verdict must be not guilty. The defendant had produced no evidence which, if believed, would have justified or excused the use of a knife or other deadly weapon. If he used a knife that use was, under thn evidence, unlawful, and the injury thereby inflicted was an unlawful cutting and wounding. The theory advanced at the trial by the defendant was that the prosecutor must have been cut by a glass, which the defendant held in his hand. This was theory almost exclusively, for the evidence to support it was' very slight. The defendant did testify that he held a beer glass in his hand, which he interposed when the prosecutor attempted to throw a small glass at him, but, although directly interrogated upon the point, he would not say whether the glass which he so held had been broken. No other witness testified that the defendant had even had a glass in his hand, or had attempted to shield himself with it from any attack. The court submitted this question to the jury, and fairly stated the contention of the defendant under the evidence. The defendant complains that in submitting the question to the jury the court made this comment upon the evidence: “The theory has been suggested, but it is proper that I should state to you that I am unable to discover from the testimony in this case, any substantial support of that theory, that this wound was inflicted by a glass. You have seen the wound and you can draw your own conclusions from the appearance of it, whether it was inflicted with a knife or with a glass.” While thus expressing an opinion upon this branch of the evidence, the court expressly instructed the jury that the weight and effect of this evidence was for them; “ Of course, it is for you to say. The extent to which a trial judge ought to go in reviewing, analyzing and com
The offer of the defendant to prove that the licensed saloon keeper, in whose barroom the prosecutor had been wounded, had shortly after the stabbing visited the prosecutor at the hospital and, without any consent or knowledge of the defendant, made a settlement of the case with the prosecutor and obtained a complete and full release of all actions he might have against the defendant, was properly rejected. The Act of March 31, 1860, P. L. 427, sec. 9, authorizes the settlement of certain classes of cases “ if the party complaining shall appear before the magistrate who may have taken recognizance or made the commitment, or before the court in which the indictment shall be, and acknowledge to have received satisfaction for such injury and damage,” and authorizes “the magistrate, in his discretion, to discharge the recognizance which may have been taken for the appearance of the defendant, or in case of committal to discharge the prisoner, or for the court also where such proceeding has been returned to the court in
The judgment is affirmed and it is ordered that the defendant appear in the court below at such time as he may be there called and that he be by said court committed to serve that portion of his term of imprisonment which had not expired at the time this appeal was made a supersedeas.