78 Pa. 185 | Pa. | 1875
delivered the opinion of the court, May 10 th 1875.
We think the assignments of error in this case fail to show any ground for reversal, except of the sentence of the Court of Oyer and Terminer. It was certainly competent to show, that the
There was no evidence that the deceased had used threatening language, or acts toward the prisoner. Hence, the answer of the court to the fifth point was correct. The facts were referred to the jury. The only material question is, whether the evidence in the case contained the elements, or “ ingredients” of murder in the first degree. It is certainly true, that the Commonwealth must establish the existence of these elements, otherwise no presumption arises from the killing, of an offence higher than murder in the second degree. But if the evidence may reasonably admit of the conclusion, that the murder was wilful, deliberate and premeditated, it is for the jury to pronounce upon the degree of the crime, and a court of error will not reverse. In giving an interpretation to the Act of 15th of February 1870, we have said, if there have appeared in the testimony the ingredients to constitute murder in the first degree, our power ceases. We do not sit to hear the case as upon a motion for a. new trial, to determine where the weight of evidence lies, but “ to determine whether the ingredients necessary to constitute murder in the first degree shall have been proved to exist.” These being proved, the jury must determine the guilt or innocence of the prisoner: Grant v. Commonwealth, 21 P. F. Smith 495.
This leads us to inquire into the circumstances of the killing. But one witness, Charles McCarty, was present. His account of the affair is concise and clear. On Sunday, October 25th 1874, McCarty was with the prisoner, who invited him to come into the house where he and the deceased lived. On going in, Dieter, the deceased, was lying in a bunk, apparently asleep. McCue, the prisoner, and McCarty took a seat by the window and took a drink of wine. McCue gave McCarty something to apply to his sore eyes, and while he was applying it McCue was hunting for
It.is true the time was short and the bullet swift, and God alone
But there is one error for which the sentence of the court must be reversed. It does not appear from the record, that the prisoner was asked before sentence, why sentence of death should not be pronounced upon him. This is a fatal error, and affects the merits of the case. It is necessary to ask the prisoner this, that he may have an opportunity, before the penalty of death be visited upon him, to plead in bar of the sentence any matter sufficient to prevent its execution. He may have found out some good reason why the trial was not legal, or he may plead a pardon, or supervening insanity. The question and the answer that he hath nothing to say other than that which he hath before said, or this in substance, must appear in the record before the sentence can be pronounced: Prine v. The Commonwealth, 6 Harris 104; Dougherty v. Commonwealth, 19 P. F. Smith 291. In this case the question may have been asked in fact, but as it does not appear in the record, and is a matter of substance, we must treat it as not having been done. In all high felonies, and especially in cases of murder, the presiding judge should see that the record is made up properly, before the term is over.
The sentence will be reversed, in order that the case may he sent back, and an opportunity afforded to the prisoner to plead in bar of it, but this error will not reverse the trial and conviction. Jewell v. Commonwealth, 10 Harris 94, 102.
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