Opinion by
This appeal challenges the validity of the judgment of sentence of life imprisonment imposed on the appellant, Mack Clinton Speller, on December 1, 1919, following Ms conviction by a jury of murder in the first degree. 1
An examination of the trial record manifests adequate evidence to sustain the jury’s verdict, and this is not disputed on appeаl. From the testimony of the Commonwealth witnesses, the jury could find the following facts.
On October 31, 1918, Speller was a guest at a halloween party in an apartment residencе of Norman Edwards in Philadelphia. While Edwards and a Mrs. Saunders, another guest at the party, wеre talking in one of the rear rooms of the apartment, Speller entered thе room, quickly pulled a .32 calibre automatic pistol from an inside coat pоcket, pointed it at the head of Edwards and pulled the trigger. A bullet pierced the left frontal area of the skull at the hairline fracturing the cranium bone. Edwards was taken *34 to a hospital almost immediately, where he died from the bullet Avound eight days later. Spеller fled the scene after the shooting and left Pennsylvania. Efforts by the police to locate him failed. Speller voluntarily surrendered to the police in Philadelрhia on March 6, 1949.
During the trial of the case, Speller admitted the shooting but said it was unintentiоnal. He stated the gun discharged accidentally as he was exhibiting it to Edwards.
At trial, Avitnesses. testified, over objection, that within a short time after Edwards entered the hospital, he said, “Big Mack shot me." This is assigned as error. We disagree.
Before this challenged testimony wаs admitted, the doctor, Avho administered emergency aid to Edwards when he entered the hospital, described his “critical" condition, the nature of the wound and stated that Edwаrds was then “in imminent danger of death." Under the circumstances, it was not error to admit the testimony as a dying declaration.
It is true, as appellant urges, that before declаrations of a deceased may be admitted as dying declarations, the evidence must, inter alia, justify the conclusion that at the time the statements were made, the declarant believed he was in fact dying, and. also that death was imminent. In other words, the аdmissibility of such evidence depends primarily upon the state of the declarant’s mind.
Commonwealth v. Knable,
Next, it is urged that the trial judge’s instructions to the jury were fatally deficient since he failed to charge the jury that before the jury could consider the declaration of Edwards, previously discussed, it would have to find that the victim “had knowlеdge of impending death” at the time the statement was made. 2 This same issue was decidеd contrary to appellant’s position in Commonwealth v. Edwards, supra, and further discussion is not needed here.
Appellant also assigns as error thе excusing of a juror for cause, merely because the juror expressed objеctions during voir dire examination to imposition of the death penalty. Since the рenalty fixed by the jury in the instant case was life imprisonment, it is admitted that the minimum constitutional stаndards as to the exclusion of jurors in homicide cases, as announced in
Witherspoon v. Illinois,
We reject such a suggestion. The premise upon which the argumеnt is based is without persuasive foundation and is mere speculation.
Judgment affirmed.
Notes
After sentence was imposed, an appeal was not then filed. However, in 1970, after an evidentiary hearing on a petition seeking post-conviction relief, the court concluded Speller had not knowingly waived his right to appeal from the 1949 judgment As a result, the cоurt permitted post-trial motions to be filed as if timely filed. These motions were subsequently denied, and this appeal followed.
No specific exception was entered to the charge of the court.