266 Pa. 580 | Pa. | 1920
Opinion by
This appeal is by defendant from judgment upon conviction of murder of the first degree. Defendant and Luke Halipow, the deceased, resided in the same neighborhood in Pittsburgh, and, on the evening of October 2, 1918, they were out together and visited a saloon, where they drank some, and in the course of an argument the deceased struck or slapped defendant, and it became known that the latter had a knife, although he made no attempt to use it there. After leaving the saloon they had some slight altercation on the street and defendant went to his boarding house, washed the blood from his face and about fifteen minutes later reappeared upon the street, and, coming up to the deceased, killed him with a knife stab in the breast. Defendant contends that while out in search of an officer he was set upon by the deceased and inflicted the wound in self-defense. In
A misstatement of the law in one part of a charge is not cured by a correct statement thereof in another part, as it is impossible to know which the jury accepted (Com. v. Divomte, 262 Pa. 504). In the language of the Chief Justice, in Com. v. Wooley, 259 Pa. 249, 253, “where correct and erroneous instructions are given in a charge, it is not to be conjectured, especially in a capital case, which the jury followed”; and see Calhoun v. Holland Laundry, 220 Pa. 281; Rice v. Com., 100 Pa. 28. One part of a charge may clear up that which is obscure but cannot cure that which is legally wrong in another part, unless the latter be withdrawn: Com. v. Divomte, supra.
The trial judge fully and accurately stated the rule as to reasonable doubt and then refused, without reading it, defendant’s first point, viz: “If' the jury or any member of the jury have a reasonable doubt of the guilt of the defendant, defendant must be acquitted.” The defense got all to which it was entitled on this branch of the case (Com. v. Danz, 211 Pa. 507), as the jury was properly instructed and might have been misled by an affirmance of the point. To send a jury out with instructions that they must acquit if one of their number has a reasonable doubt of guilt, without further explanation, would in many cases result in a miscarriage of justice. Probably in a majority of murder trials the jurors’ initial ballot reveals a diversity of opinion; that does not necessarily call for an acquittal, but rather for a full discussion and an analysis of the evidence until each juror has mastered the case and the minds of the twelve
Defendant admits he cut the deceased with a knife and threw it away in an alley. A search for it there the next morning was fruitless. However, a few minutes after the homicide he was seen standing in the alley in front of an open cellar window, and two and a half months thereafter a knife was found in that cellar near the window, with what looked like blood stains upon it. The court below admitted the evidence relating thereto and also the knife as a circumstance for the consideration of the jury. In this we discover no' abuse of discretion, although at first thought its finding seems too remote, and this would be so had it been found in the alley or some other accessible place; but, as it was found in the cellar, where it might not be discovered for months, the question of remoteness affected its weight rather than its admissibility. Had it been found the next day no one would question its competency (Com. v. Karamarkovic, 218 Pa. 405), yet, so far as appears, there was nothing to disturb it during the two and a half months. In Com. v. Ronello, 242 Pa. 381, it is held, in the opinion by Mr. Justice Stewart, that the identity of a knife found in the river near the scene of the homicide two months thereafter and its connection with the crime were matters for the consideration of the jury. As defendant admits the cutting it is not of great importance with what knife it was done.
As there was no contention that the murder was committed by lying in wait, it was not necessary for the trial judge to explain the law relating to that species of murder especially as no instruction with reference thereto was requested.
The suggestion that the Commonwealth failed to establish the corpus delicti is without merit; however, at a retrial the body on which the post-mortem was held can doubtless be more clearly identified as that of the deceased.
The sixth assignment of error, relating to the measure of proof necessary to establish self-defense, is sustained and thereupon the judgment is reversed and a venire facias de novo awarded.