188 Pa. 143 | Pa. | 1898
Opinion by
On the trial of this case the jury was allowed to view the premises where the killing took place. When the motion for that purpose was made no objection was offered to it, and neither then, nor at any time during the trial, was any exception taken to the order of the court allowing the view, nor was there then, nor is there now, any complaint made that any, even the slightest, irregularity occurred during the view. No witness was examined, nothing was said to the jury, no action of any kind was taken, the defendant and his counsel were at liberty to attend the view if they chose, the jury simply saw the premises and returned to the box. Several months elapsed when the counsel for the defendant asked the court to allow an exception on this account. The request was granted, not because an exception had been taken at the trial, but because the learned trial judge was generously willing to allow the defendant any opportunity he chose to ask to make a point in his favor. As a matter of course an exception thus obtained has no efficacy,
The second assignment cannot possibly be sustained because the record, as it comes to us, gives no indication tliat tbe words wbicb it is alleged were omitted from the charge were in fact omitted. We must take the record as we find it, and as we find it tbe instruction of tbe court was perfectly correct. But it is incredible that it could have been otherwise, because tbe learned trial judge, in tbe immediately preceding part of the charge, had expressly and much more fully charged the jury in precise accordance with the instruction as it now appears, and could not have charged as claimed by tbe defendant without stultifying liimself. Thus he charged: “ There are two degrees of murder. Any murder wbicb is perpetrated by means of poisoning or by lying in wait, or by any other wilful, deliberate and premeditated killing, is murder in the first decree. The same is true if it he committed in tbe perpetration of, or in tbe attempt to perpetrate, any arson, rape, robbery or burglary. All other murder is murder in the second decree.” He then defined manslaughter in both its degrees, and then said, “ Every unlawful killing is presumed to be murder, though not of tbe first degree.” The defendant now asks us to decide that the words “though not,” were omitted in the charge as actually-delivered. It is enough to say, that we have no right to change the record in this manner, and even if we had we would not do it, because it is impossible to believe that the court could have
The third and fourth assignments are entirely devoid oí merit. The defendant was on the stand, and testimony had been given with a view to make out a possible case of insanity; but as he had given a perfectly rational and minute description of all the facts, precisely as he claimed they had occurred, it was simply incredible that he could have been insane at the time the offense was committed or at the time he was testifying. He was' therefore simply and very naturally asked: “Q. You don’t say you are insane, do you? A. No, sir.” Assuredly this was a perfectly legitimate question, and the comment of the court complained of in the fourth assignment was literally correct and entirely justified by the evidence. It is only necessary to read the immediate context of the charge to understand this. These assignments are dismissed.
As to the fifth assignment an examination of the testimony of the witnesses shows clearly that the comment of the trial judge here complained of was entirely correct, and the assignment must be dismissed.
Sixth assignment. The qualification in the answer to the defendant’s tenth point was in precise conformity with.the ruling in the case of Com. v. Drum, 58 Pa. 9, from which the point was manifestly taken, and therefore was in no sense erroneous. Judge Agnew in his charge in that case expressly excepted out of the enumerated possible cases of the absence of self-governing power, “ that wickedness of heart which drives the murderer on to the commission of his crime reckless of consequences,” and this was all that was excepted by the court below in the qualification of the point. The assignment is dismissed.
The comment of the court upon the testimony of Saunders, complained of in the seventh assignment, was strictly correct,
The contention expressed in support of the ninth assignment is in direct hostility with the positive testimony of several witnesses, especially Mrs. Fotterhoff, George F. Wickenhoffer and W. J. Brimble, and the assignment is therefore dismissed.
Eighth, tenth, eleventh, twelfth and nineteenth assignments. In all of these assignments the substance of the complaint is that the charge of the learned court below was inadequate, in excess of legal restrictions as to some of the matters stated, and unfair to the defendant, in giving undue prominence to the facts which tended against the defendant, and not sufficient prominence to those which turned in his favor. After a most painstaking, minute and careful reading of the whole of the charge, and again and again of the parts specially set forth in these several assignments, we are constrained to say that we do not regard these assignments as being sustained in any degree. No one can read the testimony in this case without being convinced that the offense committed was a most cruel, barbarous and cold-blooded murder, with every element of deliberation and premeditation fully established by abundant testimony. A number of witnesses testified to previous threats made by the prisoner that he would kill the woman whose-life he subsequently took, and three of them testify that he said he would cut her throat. Mrs. George Neiman testified that he said, only four days before the murder, “ that he would cut her throat from ear to ear; would kill her; that he would not hang, for he would go to York state and get out of reach.” As this was precisely what he did do in a most inhuman and barbarous manner’, the charge of premeditation must be regarded as having been established by testimony of the most conclusive character. That there was a strong motive for these threats and their subsequent execution was fully proved by the fact that the woman had, just before the threats were made, preferred a criminal charge of burglary and larceny against him, on which he was arrested and brought before a magistrate, and the threats were made in connection with, and in consequence of, that proceeding. ITis relation with the woman was precisely as it was stated by the court. She was his mistress, and they were constantly indulging in illicit intercourse for several years, and up
Thirteenth, fourteenth, fifteenth, sixteenth, seventeenth and eighteenth assignments: these all relate to the qualifications of jurors, and may be considered together. Upon an examination of the whole of them we are of opinion that the rulings were in conformity with our modern decisions. A few of the questions asked were of a somewhat unusual character, and may be specially considered. Thus the rejected questions to Juror Ackerly inquired as to what ho would do upon the whole of the testimony in a certain event, and what effect he would assign to the immoral relation existing between the defendant and Mrs. Wescott. As these are not the tests of the juror’s mere competency to sit as a juror, and as the inquiries simply related to the possible action of the juror upon" hypothetical conditions, it is manifest that they should have been rejected. So, also, as to the juror Shrunk, who had qualified himself by his answers to the preliminary questions, and was then asked what would be his opinion as to the guilt of the defendant, although the law presumed him to be innocent until he was proved to be guilty. As this would substantially require the juror to express his opinion upon the whole of the testimony, in other words, to announce his verdict without knowing what the testimony would be, it was clearly incompetent. The question was quite similar in character to the rejected question in Hall v. Com., 22 W. N. C. 25, where two jurors were asked whether they would consider insanity a good defense if it was fully proved on the trial. The court below refused to allow the question to be put and we sustained the ruling. The juror Owens qualified himself clearly by his answers to questions. He stated distinctly that he could go into the jury box and
The matter of the twentieth assignment is too unimportant to consider as a cause of reversal. It was nothing but a reference by the court to the testimony of the defendant, in which he spoke of getting something to eat at some person’s house the next morning. It is complained that there is some discrepancy in the testimony as to whether it was the next morning, but as the defendant only said that he could not “ tell but what he was helped by this young girl,” it committed him to nothing, and does not amount to a contradiction, whether she gave him the food the next morning or a month later or not at all. The assignment is too trivial for serious consideration and is dismissed for that reason. The same is true in a still stronger degree of the twenty-first assignment, in which the judge made reference to the testimony of Saunders, and remarked that he did not see how it could be correct if the defendant’s statement was correct. It was of no con sequence to the defendant whether Saunders was mistaken or not, and the assignment is dismissed.
The twenty-second assignment is not sustained, because an examination of the testimony shows that the judge was correct in his statement of the testimony as to the threats. The same is true as to the twenty-third assignment. The court correctly stated the testimony of Mrs. Fetterhoff. The additional remark of the judge that this was probably fifteen or twenty minutes before the killing was perhaps literally correct, but whether it was a few minutes more or less was not of the slightest possible consequence. There was no question of the guilt or in
Twenty-fourth and twenty-fifth assignments: these relate to the declarations of the deceased when she was seen just after coming from the cellar, with her throat cut and profusely bleeding. The declarations in question were made by the deceased immediately after she came from the cellar and while the blood was gushing in great quantities from the ent which had just been made across her throat. She was in the act of fleeing from the defendant who had inflicted the wound, and he was in the act of fleeing from pursuit at the instant when the declarations were made. They were all part of the same transaction. In point of time the declarations immediately followed the cutting, and in point of distance the declarations and the cutting were on the same premises. There could scarcely be any greater propinquity of both time and place. There cannot he a moment’s doubt that the declarations were the spontaneous utterances springing out of the transaction itself. We are clearly of opinion that they were competent evidence as part of the res gestee. We consider the qxiestion as ruled by onr decision in the case of Com. v. Werntz, 161 Pa. 591. In that case the witness testified that he was at the door, outside of the shed where the fight took place, and heard the deceased say, “ the coon did it,” and that when he was brought out of the shed the same expression was repeated; that the deceased was then carried to a barber shop across the street where his wound was dressed. Onr Brother Mitcpíell delivering the opinion said: “Witness was then asked whether Gallagher, while lying on the floor of the shop, had made the same or a similar declaration. This was excluded as too remote. The interval of time from the stabbing and the distance of the barber shop from the shed do not appear with exactness, nor are they material, for it is apparent they were not great, and that the continuity of the events was not broken. The declarations were by the party best informed and most interested, and were made at a time and place, to a person, and under circumstances, which effectually excluded the presumption that they were the result of premeditation and design. If such declarations were in fact made by Gallagher, they were the most material evidence in the case, and should have been admitted.” All of the fore
The twenty-seventh assignment cannot be sustained. When the commonwealth offered to prove a voluntary confession made by the prisoner, his counsel applied to the court for pennission to show that a previous confession had been obtained by undue means. The court refused the application, and the testimony proceeded in the regular way. If the application had been granted it could not have prevented the admission of the commonwealth’s evidence, and the only result would have been a question of credibility as between the prisoner and the officer who testified to his voluntary confession. The prisoner was entirely at liberty to cross-examine the officer fully as to all the circumstances in which the confession was made. And he was-further at liberty to testify himself in defense and give his own statement as fully and completely as if he had been permitted to do so in advance of the proof by the commonwealth. In the
The judgment is affirmed and the record is remitted in order that the sentence may be carried into execution according to law.