271 Pa. 584 | Pa. | 1922
Opinion by
Defendant, a resident of the City of New Castle, appealed from a conviction of murder of the first degree, following the refusal of the court below to grant a new trial.
The first assignment of error complains of the court’s charge in referring to the testimony of three witnesses, called in support of the defense of an alibi, as follows: “It is your duty to take up the testimony of those witnesses, all that they have testified to, and give it careful and close scrutinizing.” Defendant contends the use of the word “scrutinizing,” under the particular circumstances of the case, had the effect of casting suspicion on the testimony of the witnesses, with the result that it was not believed by the jury. Defendant was
Standing alone, the evidence objected to would clearly be too remote, had it not been given in connection with the testimony of other witnesses who were acquainted with defendant’s reputation down to the date of the trial. The evidence as a whole thus tended to show defendant bore a bad reputation for twenty years before the crime continuously down to the date of the offense with which he was charged. Witnesses offered by defendant testified to his good reputation during the three or four years he lived in New Castle immediately previous to the commission of the offense. Conceding this testimony would not have been rebutted by proof that twenty years previous to that time he bore a bad reputation, it was proper to show he had continuously during the period of twenty years borne a bad reputation. This distinction is recognized in Hopkins v. Tate, supra, where it was said (page 60) : “We think the learned court erred in admitting in evidence testimony to show the plaintiff’s bad reputation for honesty in another neighborhood and eleven years prior to the time when the alleged slanderous words were spoken by the defendant for which this action was brought. The court told the jury there was no evidence tending to show that the plaintiff’s reputation for honesty was bad at the time or in the place where he lived when the slander was uttered. This distinguishes the case at bar from Parkhurst v. Ketchum, 87 Mass. 406, cited by the court and appellee to sustain the competency of the testimony, where it appeared that the plaintiff’s reputation was bad at the date the words were spoken as well as ten years prior thereto. The court recognized this distinction as material, if not controlling, in the opinion, where, in discussing the competency
The third assignment is to the refusal of the court below to grant an application for change of venue, based 'on alleged existence of prejudice against defendant in the neighborhood sufficient to prevent a fair trial. The court heard testimony on the application, and almost if not quite a dozen witnesses were called and examined on each side. Of the witnesses for defendant, those who resided in the City of New Castle were generally of opinion a fair and impartial trial could not be obtained. The witnesses for the Commonwealth were called from various parts of the county and were of opinion a fair trial could be had. In stating the reasons for refusing a change of venue the court below in its opinion said: “The court had personal acquaintance with all of the witnesses called in support of the application for change of venue, as well as those called by the Commonwealth, in opposing the application for change of venue. The witnesses for the Commonwealth, by reason of their occupations and opportunities of coming in contact with the masses of the people, showed a greater familiarity with the sentiment and public thought of the community than those called by the defendant. Several of the witnesses for the defendant admitted that the excitement and the prejudice in the minds of the people at the time of the finding of the body of defendant’s deceased wife had subsided, and we were justified in concluding from the testimony of all of the witnesses called on this question that the defendant could obtain a fair and impartial trial, and our opinion thus formed re
The fourth, fifth and sixth assignments question the sufficiency of the evidence to support a conviction of murder of the first degree. The court below correctly disposes of the matter of these assignments in this language : “The testimony of the Commonwealth showed that the defendant, on the afternoon of December 23d, the day following his [attempted] marriage to Mrs. Longstreet, [in Pittsburgh] drove in his automobile to his residence in Neshannock Avenue in the City of New Castle at about 4 o’clock in the afternoon; that he entered his house, went to his apartment and shortly thereafter drove away accompanied by his wife. It was also proven that about 5:30 o’clock on that afternoon defendant went to the residence of William P. Mitchell, in the City of New Castle, and obtained a key which Mr. Mitchell had been using to get into a barn rented by defendant on a lease from Miss Treser, which barn was located in the First Ward, City of New Castle. The defendant had given this key to Mr. Mitchell for the purpose of having him, Mitchell, tend to his horses during his absence from the City of New Castle. At the time the defendant called at the Mitchell residence for this key the testimony shows that there was a woman in the automobile (which the defendant had left standing in front of the Mitchell residence) when the defendant drove away and defendant said she was his wife. The testimony further shows that within a few days thereafter defendant moved his household effects from his residence in Neshannock Avenue. That on the day he was moving defendant’s son-in-law came to his residence, inquired about defendant’s wife and was told by defendant that she had lost her mind and that he had sent her to the Warren hospital for the insane. De
To what the court below said may be added that defendant in his application for a license to marry Mrs. Longstreet made affidavit that his wife had died the previous year, which was untrue; and, upon discovery of her body, refused to identify it as that of his wife, although dressed in the clothes he said she wore when he last saw her. Finally the money he claims to have given her was not found on her person. While the evidence against defendant was entirely circumstantial we agree with the court below that it was sufficient, if believed by the jury, to. justify the conclusion that he was responsible for his wife’s death.
The seventh assignment refers to the instructions given the jury and alleges, as a whole, they were inadequate and prejudicial to defendant in that the court failed to comment on the strong points of the defense and gave undue prominence to testimony adduced on behalf of the Commonwealth. We find no merit in this assignment. The charge was fair and covered every phase of the Commonwealth’s case, as well as that of the defense, and counsel for defendant wras apparently well satisfied with the instruction, since, in reply to a question by the court whether there were other matters he desired to be covered in the charge, stated there was none. The rights of the defendant were fully protected and we find no reversible error in the record.
The assignments of error are overruled, the judgment is affirmed and the record remitted to the court below for the purpose of execution.