129 A. 453 | Pa. | 1925
Argued April 13, 1925. On separate occasions, two different juries have found appellant guilty of first degree murder. Our examination of the record of his last trial, which is before us, satisfies our minds that the evidence produced warranted that jury's findings.
Elaboration of the facts is not necessary in order to show the basis for our conclusions as to the alleged errors brought to our attention. It will be sufficient to say that the defendant and deceased had been together during the day of the shooting and had been drinking; they *471 were in defendant's house and about midnight an argument arose between them, which resulted in appellant's ordering the deceased to leave. While the argument was in progress, defendant went upstairs and returned within a few moments. The Commonwealth contends that defendant's purpose in leaving the room was to get his revolver; this the defendant denies, alleging that the revolver was all the time on a dresser in the room where he and deceased were scuffling, whence defendant took it to protect himself. The testimony showed, however, that deceased was proceeding to depart from the room when defendant shot at him, and, following him into the entryway, fired at least two more shots with fatal effect. Defendant then went to his bedroom where he locked himself in. On the door being forced open by police officers, defendant was found in bed. He told stories to the officers which were false and conflicting and when shown the body of the dead man, denied knowing him; subsequently he admitted the killing, alleging that it was done in self-defense. The circumstances connected with the shooting were detailed by an eyewitness.
The argument in appellant's behalf for a reversal is based upon (1) the fact that a former convict served upon the jury; (2) the instructions of the court as to self-defense; (3) remarks of the court as to the credibility of the Commonwealth's principal witness; (4) alleged unfairness of the charge; (5) instructions as to the degree of defendant's intoxication as bearing upon the grade of his crime. The last contention would seem to be the one most strongly urged.
After the trial, an affidavit was submitted in which it was averred that one of the jurors had previously been convicted and sentenced to jail for the crime of making a false income tax return and that this fact was not known by defendant when he accepted the juror as one of his triers. No authority is cited to us by appellant, either as showing that the conviction of such a crime works a disqualification for jury duty or that such a circumstance *472
is sufficient to set aside a conviction. Even assuming, for the purposes of argument, that this fact would be ground for challenge for cause of a prospective juror, if advanced before he were sworn, it does not follow that the existence of this fact, unknown to defendant before conviction, would be cause for a new trial. It is the duty of parties to ascertain, by proper examination at the time the jury is impaneled, the existence of any reasons for objection to the jurors. Here there was no deception by the juror or anyone as to the fact; no effort was made to elicit such information; the failure to do so and to make objection at the proper time operates as a waiver: Travies v. Com.,
There is no ground for criticism of the charge on the subject of self-defense. The jury was adequately instructed on this phase of the trial and defendant's points relating thereto were affirmed, with the exception of one which possibly the trial judge thought too rhetorical for place in his charge. Its refusal in view of his other instructions on this subject could have produced no harm to the accused. The trial judge in charging as to self-defense said, "If then, his [the defendant's] evidence leaves his extenuation [on the ground of self-defense] in doubt, he cannot be acquitted of the crime, but must be convicted of homicide in some of its grades": (Com. v. Drum,
Without substance also is the criticism of the charge upon which is based the fourth assignment of error for the court having said: "It is your duty to pass upon the *474 credibility of the witnesses. A witness is credible when honestly trying to tell you the truth, though he may be mistaken in some respects. You are not bound to believe a witness; his credibility is entirely for you, and you can give such weight to the testimony of any witness as, under the facts and circumstances, you find it entitled to receive. A witness is credible when honestly trying to be truthful." The court was speaking not, as appellant argues, of a particular witness but of the witnesses generally.
As to the alleged unfairness of the charge, we have not been able to so construe it. It strikes our minds as a fair and unbiased presentation of the case.
This brings us to the court's charge on the subject of the defendant's alleged intoxication. The testimony shows that he had been drinking and his wife testified that he was drunk and that he himself so indicated; other witnesses, however, did not think he was affected by the liquor he had taken. His conduct at the time of the shooting and subsequent thereto negatives the idea that he was not mentally responsible for his act. The charge of the court fully and amply protected him as to this branch of his defense in such a way that the jury must have clearly understood the problem with which they were to deal. If anything, the charge in laying down the legal principles as to intoxication was more favorable to him than otherwise. As was said by the present Chief Justice in Com. v. Detweiler,
The court could not have instructed the jury as requested in defendant's seventeenth point that, if they should find "the defendant had been drinking at or before the shooting occurred, that in itself would be sufficient, taken with other circumstances in the case, to reduce the crime from first degree to second degree murder." The mere fact that the defendant had been drinking would not alter the grade of the crime unless his intellect was so subverted that he could not form an intent. The court did not err in charging the jury that the burden was upon the defendant to establish, by fairly preponderating evidence, the degree of his intoxication: Com. v. Troy,
The court could not properly have charged the jury, as requested by the defendant, "That the kind of liquor the ordinary person can get or could get in August, 1923, is of such a character and is usually so poisonous that often a single drink will totally incapacitate him from knowing the nature and character of his acts, and from forming a correct opinion on any subject." It is sufficient as to this to say that there was no evidence in the case warranting such instructions. Appellant's position, that the court should have taken judicial notice of the evil effects of present day intoxicants cannot prevail. If their results to mentality in the present day are worse than in former times, that conclusion should rest in proof, not in judicial knowledge.
We have examined all the assignments of error and find none of them sufficient to warrant us in interfering with the verdict as rendered and the judgment thereon. *476 The proofs establish the ingredients necessary to warrant a conviction of murder of the first degree.
All of the assignments of error are overruled, the judgment is affirmed and the record remitted to the court below for the purposes of execution.