Opinion by
Annа M. Kirker resided with her husband and daughter in a house, somewhat removed from other dwellings, in Allegheny County. On December 16, 1920, she was alone and last seen alive about 10:80 in the morning, and at four in the afternoon her dead body was discovered in the living room by the returning daughter. Death had resulted from a gunshot wound, and investigation showed a number of articles had been removed from the home, including a gold watch, a manicure set and an overcoat of Mr. Kirker. Footprints in the snow showed the route followed by someone who had left the dwelling, and these were tracked by a roundаbout course to a public highway. On this path were found, concealed at different points, an overcoat torn into two parts, — subsequently identified as having been worn on that day by defendant, — and also the manicure set which had been taken.
Later, Thomas was arrested on another charge, and the inquiry which followed disclosed facts connecting him with the Kirker murder. In his room were found copies of newspapers describing the occurrence, and, in his trunk, the watch of deceased, and the overcoat of her husband. He was arrested for the crime, but escaped, and was not apprehended until t'he following July in Baltimore. At his trial, the Commonwealth proved the facts above narrated, as well as other important circumstаnces indicating guilt. His presence near the Kirker house during the period when the murder was committed was testified to by several witnesses, who were positive in
But one complaint as to the admission of evidence appears, — assignment nine, — and this is based on the permission given to the Commonwealth to prove that the husband of the deceased was not at home on the day of the murder. This objection is so cleаrly unfounded, that no discussion is required. The remaining errors are directed to the charge of the court, to which a general exception was taken. Number one complains of it as a whole, and the particular parts thereof alleged to have been prejudicial are separately assigned. The third, fourth, fifth and eighth aver error in the statement of faсt's, either on the ground of inaccuracy or insufficiency. At the conclusion of the instructions, no request for corrections or amplification was made by defendant, though in a proper spirit of fairness this opportunity was given by the court. It is too late now to complain for such reasons: Com. v. Washington,
It is insisted in assignment two that the defendant was harmed by the instructions as to the effect to be given circumstantial evidence. Comparison shows the language used is practically that of Chief Justice Gibson in charging the jury in Com. v. Harman,
The court in discussing the effect of the flight of defendant said: “When a crime hqs been committed, and the person accused thereof knows he is accused, and then
Again, it is argued legal error was committed by the reference made to the failure of defendant to testify. For a clear understanding, we. quote from the charge: “The defendant was returned from Baltimore to the City of Pittsburgh on July 22d last, and has been here from that time to the present. The defendant has not seen fit to producе any evidence in answer to the charge of the Commonwealth, and in answer to the evidence produced by the Commonwealth. It is the law, and I so charge you, that the fact that thе defendant does not go on the stand, or does not produce any evidence in his own behalf, is not to be taken and considered as any evidence of guilt, or to be taken and сonsidered as anything against him whatsoever. For it sometimes and often does occur that defendants and their counsel are not convinced that the Commonwealth has produced sufficient evidence which, even if believed, would be sufficient to warrant a conviction. So therefore it is presumed in this case that that reason prevails — but irrespective of that it is nevertheless a matter and a question for you to determine, because neither the counsel for the Commonwealth, the district attorney, nor counsel for defendant, nor the cоurt have anything to do with the determining of the facts of a case; that is what the jury is for, and that is their province.”
Prior to 1872 (Act of April 3, 1872, P. L. 34), a defendant could not1 testify in a criminal case, though the offense rose no higher than a misdemeanor. In 1877 (March 24, P. L. 45) the right to be heard was given in case of trials for felonies where the court of oyer and terminer had not exclusive jurisdiction, and lаter, (June
So, a statement that the evidenсe of the Commonwealth is uncontradicted is harmless: Com. v. Chickerella,
The only difficulty, — and an examination fully explains what at first raises doubt, — is the last sentence of the portion of the charge assigned. After stating the rеason why no prejudice attaches from the failure to give evidence, in that defendant or his counsel may be convinced no sufficient evidence to convict has been рroduced, the court stated parenthetically, — so therefore it is presumed that that reason prevails,” and then, returning to the thought as to the belief of defendant and his counsel of the insufficiency of the evidence to convict, says that is a question for the jury to determine, because counsel do not determine the facts. That this is what the jury must have understood is madе evident by looting at the whole paragraph; if that' had not been the meaning intended to be conveyed, the statement that it is not for counsel to pass on the facts would be without' purpose. Had the stenographer in transcribing placed a dash between the words “conviction” and “so,” as was done after the word “prevails,” no question could have arisen. As printed, it is argued this might possibly be construed into a direction that the jury could find as a matter of fact the reason for not testifying was not a legal one, and, as a result consider the failure аs an evidence of guilt. We are convinced, the jury could not have been so misled, in view of the statements which precede, and it cannot be fairly said the court made “adversе comment,” or committed error.
The remaining assignments complain of the refusal of a new trial, and the passing of sentence. An examination of the record convinces there was sufficient competent evidence to justify the conviction of murder of the first degree. The case was fairly and correctly tried, and there appears to be nothing of which defendant has any just reason to complain.
The judgment of the court below is affirmed, and it is ordered that the record be remitted for the purpose of execution.