Commonwealth v. Bowman

33 A. 342, 171 Pa. 448, 1895 Pa. LEXIS 1327

• Court: Supreme Court of Pennsylvania
• Decided: October 7, 1895
• Docket: Appeal, No. 45
• Status: Published

Opinion

Opinion by

Mb. Justice Fell,

It was admitted that the appellant was present when the murder of which he was convicted was committed. The fatal shot was fired either by him or by his companion Metzgar. He testified that Metzgar did the shooting, that there was no prearrangement or concert of action between them, that he had no previous knowledge of Metzgar’s intention, and that he .ran when the first shot was fired and was followed by Metzgar,who overtook and passed him.

Two witnesses whose attention was attracted by the noise of the first discharge of the pistol saw the shots afterwards fired, and observed the movements .of the parties at the time. Two who did not witness the shooting saw Bowman and Metzgar as they ran from the scene of the murder. Another heard the shots but saw nothing of the occurrence. Speaking of these five witnesses the learned judge in charging the juiy said: “ Rothermal, Disque and Turner, the two last, you will remember were in tbe field cutting corn, and Sulsinger and Nagle, who were in the gondola car, state that when thejr saw the two men running from the scene of the shooting the heavier man was ahead, was before the other one, and it is testified that Metzgar was the heavier man.” This statement was inaccurate, as only two of the witnesses, Sulsinger and Nagle, had so testified. The others had witnessed a part of the occurrence, but had not seen Bowman and Metzgar running from the scene. This inaccuracy is the subject of the third assignment of error, and to it the elaborate and able argument of the appellant’s counsel is mainly directed.

The error complained of was not in misstating the testimony as to an alleged occurrence, but in saying that five witnesses had testified to it when but two had done so. The fact was not in dispute. The appellant had admitted that as they ran from the scene of the murder he was in advance of Metzgar. The effect of the error then was not to establish a fact prejudicial to the defense, and it was harmless unless it tended to weaken the defense by raising an apparent contradiction in the testimony as to other material matters.

Neither Bowman nor Metzgar was identified by any of the witnesses except by their apparent size. Bowman was the smaller. Disque had testified that the larger man had the revolver and did the shooting, and that the smaller man ran after the first shot. To some extent this testimony was confirmed by Rothermal, and the testimony of these two witnesses harmonized with and tended to strengthen Bowman’s statement. Under all the testimony it was probable that the one of these two men who remained longer committed the murder and robbery. The effort of the defense was to show that Bowman left the scene first. Its weakness was in the fact, which was established beyond dispute, that at a point forty or fifty yards from the place where the crime was committed, and when they were both running to effect their escape, Bowman was behind Metzgar. His explanation was that he bad stopped to see what Metzgar was doing, and bad been overtaken by him.

The occurrences of which the witnesses spoke were distinct, and it is only by blending them into one that any uncertainty or doubt arises. Three witnesses testified to what took place at the time the shots were fired, and two to the position of the parties at tbe time of 'their flight. It was of the latter that the learned judge spoke. If all of these witnesses had testified as they were erroneously stated to have done, the defense would not have been weakened thereby, as there would have been no necessary conflict in their testimony and their statements would have corresponded exactly with that of the appellant.

A misstatement in the charge of material evidence, which may have injured the accused, is ground for reversal, and it need not appear that it did prejudice the defense; it is sufficient if it may reasonably have had such an effect. But there is no ground for reversal where the error is harmless and could not have misled the jury. It is unnecessary to consider the remaining assignments in detail; we find no adequate reason for sustaining any of them. The trial was carefully conducted, and the charge contains a full and fair presentation, of the defense.

The judgment is affirmed, and it is directed that the record be remitted in order that the sentence may be carried into execution according to law.