Opinion by
Mr. Justice Bell,
Defendant was indicted and tried' for murder. The jury found him guilty of murder in the first degree and fixed the penalty at life imprisonment. After defendant’s motion for a new trial was dismissed, he appealed to this Court.
The jury could have found from the Commonwealth’s evidence and from the reasonable and legitimate inferences therefrom that the Commonwealth proved beyond a reasonable doubt the following facts:
Jeff Clanton, the defendant, and his alleged wife, Robbie Mae, were separated. During the afternoon and early evening of August 24, 1957, Robbie Mae was with a group of friends, including the victim, Ernest Page. Page and Robbie Mae then went to her apart[523]*523ment. Defendant spent much of the evening of August 24,1957, searching for Robbie Mae. At about 1 o’clock on the morning of August 25, 1957, defendant went to Robbie Mae’s apartment. Although Page was in the bedroom at that time, defendant stayed in the kitchen and did not discover Page, who was drunk and lying in his shorts across Robbie Mae’s bed. Robbie Mae testified she slept on a couch in the living room. Defendant questioned her and stated that if he found them together he could “promise a good killing”. Defendant then went home and loaded 8 bullets into an automatic pistol. After a restless sleep, he arose about 5 a.m., armed himself with his loaded pistol and walked nine blocks to Robbie Mae’s apartment. He was a powerfully built man and was a former sparring partner of ex-heavyweight champion Ezzard Charles. He entered the apartment by breaking the door with his shoulder and found Robbie Mae in the living room. Immediately upon his entrance he cocked his pistol. At gun point he forced Robbie Mae into the bedroom where he saw Page on the bed dressed only in his shorts. Putting the gun to Page’s face, defendant dragged Page by the neck onto the floor of the living room where a scuffle ensued. During the scuffle the gun was discharged and defendant shot himself in the finger. When Robbie Mae tried to dissuade defendant from his obvious purpose, defendant turned upon her and shot her through the shoulder, knocking her to the. floor. Page regained his feet and ran toward the only door of exit from the apartment. Defendant fired two shots at Page. The first shot missed but the second hit Page in the center of his back, knocking him to the floor, face downward. As Page tried to rise from the floor of the room defendant stood directly over him and shot him again, this time in the chest. Defendant then turned to Robbie Mae, who was prone on the living room floor (from [524]*524the bullet wound in her shoulder) but who was still pleading with defendant to stop shooting, and shot her again, this time in the lung. Bobbie Mae recovered from the shooting, but Page died from his wounds within a few hours.
Defendant’s first contention is that the evidence does not sustain a first degree verdict. This is clearly and utterly devoid of merit: Commonwealth v. Ballem, 386 Pa. 20, 123 A. 2d 728; Commonwealth v. Homeyer, 373 Pa. 150, 94 A. 2d 743; Commonwealth ex rel. Lagana v. Day, 385 Pa. 338, 123 A. 172; Commonwealth v. Iacobino, 319 Pa. 65, 178 A. 823; Commonwealth v. Troup, 302 Pa. 246, 153 A. 337; Commonwealth v. Green, 294 Pa. 573, 144 A. 743; Commonwealth v. Jones, 355 Pa. 522, 50 A. 2d 317; Commonwealth v. Heller, 369 Pa. 457, 87 A. 2d 287; Commonwealth v. Kelly, 333 Pa. 280, 4 A. 2d 805.
Defendant next urges that the Court erred in permitting two enlarged pictures of the body of the deceased to be placed in front of the jury throughout the trial. The trial Judge properly cautioned the jury as to the purpose of the photographs. Even if one of the two photographs could be considered to be gruesome, they were admissible because they were absolutely essential to the Commonwealth’s case, especially in view of defendant’s contention that he shot Page in self-defense.
In Commonwealth v. Ballem, 386 Pa., supra, the Court held that it was not reversible error to exhibit to the jury on a screen a magnified picture of a severed human hand, which clearly showed a scar on the burned right hand of the victim severed above the wrist joint. Dopirak had such a scar on his wrist. The Court said (pages 26-27) : “It was properly admitted in evidence in order to aid in identifying the victim as John Dopirak and to explain or illustrate the testimony of [525]*525medical or identifying witnesses. . Pistols, fruits of the crime, clothing, parts of the body of the person hilled, everything pertaining to the crime which will aid the jury in its consideration of the (alleged) crime and the guilt or- innocence of the accused, is admissible. The admission or exclusion of these objects and particularly of photographs is a matter which is within the sound discretion of the trial Judge, and the fact that a picture is gruesome is not sufficient to exclude it: Commonwealth v. Capps, 382 Pa. 72, 114 A. 2d 338; Commonwealth v. Bibalo, 375 Pa. 257, 100 A. 2d 45; Commonwealth v. Smith, 374 Pa. 220, 97 A. 2d 25; Commonwealth v. Simmons, 361 Pa. 391, 65 A. 2d 353; Commonwealth v. Wentzel, 360 Pa. 137, 61 A. 2d 309; Commonwealth v. Ferry, 326 Pa. 129, 191 A. 130.”
The photographs were used in the instant case to indicate the kind and location of the wounds and/or the position of the victim’s body and its location in the apartment. Under these facts, it is manifest that the photographs were properly admitted.
Defendant next complains of the charge of the Court and particularly of the refusal of the trial Judge to instruct the jury in accordance with defendant’s points for charge in connection with the effect of passion and self-defense. The Court’s charge must be considered as a whole, and not just isolated excerpts therefrom: Commonwealth v. Richardson, 392 Pa. 528, 546, 140 A. 2d 828; Commonwealth v. Donough, 377 Pa. 46, 53, 103 A. 2d 694; Commonwealth v. Patskin, 372 Pa. 402, 93 A. 2d 704; Commonwealth v. Barnak, 357 Pa. 391, 54 A. 2d 865; Commonwealth v. Schurtz, 337 Pa. 405, 411, 10 A. 2d 378; Commonwealth v. Moyer, 357 Pa. 181, 187, 53 A. 2d 736; Commonwealth v. Glenn, 321 Pa. 241, 183 A. 763; Commonwealth v. Holley, 358 Pa. 296, 56 A. 2d 546; Commonwealth v. Cargill, 357 Pa. [526]*526510, 55 A. 2d 373; Commonwealth v. Almeida, 362 Pa. 596, 600, 68 A. 2d 595; Commonwealth v. Becker, 326 Pa. 105, 191 A. 351; Commonwealth v. Stelma, 327 Pa. 317, 192 A. 906. The charge, considered as a whole was accurate and fair and contained no reversible error.
Defendant contends it was reversible error to refuse a point for charge relating to passion, and a point relating to self-defense. There is no merit in this contention. The point relating to passion was properly refused because it contained an inaccurate statement of the law. The point relating to self-defense was properly refused because the Court (a) had clearly and accurately covered the subject in its charge to the jury, and (b) had already affirmed several of defendant’s points for charge on the subject of self-defense, which points included the point in controversy.
Defendant also urges that the Court below erred in not granting a new trial on the ground of after-discovered evidence. The law in regard to after-discovered evidence is well settled. In Commonwealth v. Green, 358 Pa. 192, 56 A.
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Opinion by
Mr. Justice Bell,
Defendant was indicted and tried' for murder. The jury found him guilty of murder in the first degree and fixed the penalty at life imprisonment. After defendant’s motion for a new trial was dismissed, he appealed to this Court.
The jury could have found from the Commonwealth’s evidence and from the reasonable and legitimate inferences therefrom that the Commonwealth proved beyond a reasonable doubt the following facts:
Jeff Clanton, the defendant, and his alleged wife, Robbie Mae, were separated. During the afternoon and early evening of August 24, 1957, Robbie Mae was with a group of friends, including the victim, Ernest Page. Page and Robbie Mae then went to her apart[523]*523ment. Defendant spent much of the evening of August 24,1957, searching for Robbie Mae. At about 1 o’clock on the morning of August 25, 1957, defendant went to Robbie Mae’s apartment. Although Page was in the bedroom at that time, defendant stayed in the kitchen and did not discover Page, who was drunk and lying in his shorts across Robbie Mae’s bed. Robbie Mae testified she slept on a couch in the living room. Defendant questioned her and stated that if he found them together he could “promise a good killing”. Defendant then went home and loaded 8 bullets into an automatic pistol. After a restless sleep, he arose about 5 a.m., armed himself with his loaded pistol and walked nine blocks to Robbie Mae’s apartment. He was a powerfully built man and was a former sparring partner of ex-heavyweight champion Ezzard Charles. He entered the apartment by breaking the door with his shoulder and found Robbie Mae in the living room. Immediately upon his entrance he cocked his pistol. At gun point he forced Robbie Mae into the bedroom where he saw Page on the bed dressed only in his shorts. Putting the gun to Page’s face, defendant dragged Page by the neck onto the floor of the living room where a scuffle ensued. During the scuffle the gun was discharged and defendant shot himself in the finger. When Robbie Mae tried to dissuade defendant from his obvious purpose, defendant turned upon her and shot her through the shoulder, knocking her to the. floor. Page regained his feet and ran toward the only door of exit from the apartment. Defendant fired two shots at Page. The first shot missed but the second hit Page in the center of his back, knocking him to the floor, face downward. As Page tried to rise from the floor of the room defendant stood directly over him and shot him again, this time in the chest. Defendant then turned to Robbie Mae, who was prone on the living room floor (from [524]*524the bullet wound in her shoulder) but who was still pleading with defendant to stop shooting, and shot her again, this time in the lung. Bobbie Mae recovered from the shooting, but Page died from his wounds within a few hours.
Defendant’s first contention is that the evidence does not sustain a first degree verdict. This is clearly and utterly devoid of merit: Commonwealth v. Ballem, 386 Pa. 20, 123 A. 2d 728; Commonwealth v. Homeyer, 373 Pa. 150, 94 A. 2d 743; Commonwealth ex rel. Lagana v. Day, 385 Pa. 338, 123 A. 172; Commonwealth v. Iacobino, 319 Pa. 65, 178 A. 823; Commonwealth v. Troup, 302 Pa. 246, 153 A. 337; Commonwealth v. Green, 294 Pa. 573, 144 A. 743; Commonwealth v. Jones, 355 Pa. 522, 50 A. 2d 317; Commonwealth v. Heller, 369 Pa. 457, 87 A. 2d 287; Commonwealth v. Kelly, 333 Pa. 280, 4 A. 2d 805.
Defendant next urges that the Court erred in permitting two enlarged pictures of the body of the deceased to be placed in front of the jury throughout the trial. The trial Judge properly cautioned the jury as to the purpose of the photographs. Even if one of the two photographs could be considered to be gruesome, they were admissible because they were absolutely essential to the Commonwealth’s case, especially in view of defendant’s contention that he shot Page in self-defense.
In Commonwealth v. Ballem, 386 Pa., supra, the Court held that it was not reversible error to exhibit to the jury on a screen a magnified picture of a severed human hand, which clearly showed a scar on the burned right hand of the victim severed above the wrist joint. Dopirak had such a scar on his wrist. The Court said (pages 26-27) : “It was properly admitted in evidence in order to aid in identifying the victim as John Dopirak and to explain or illustrate the testimony of [525]*525medical or identifying witnesses. . Pistols, fruits of the crime, clothing, parts of the body of the person hilled, everything pertaining to the crime which will aid the jury in its consideration of the (alleged) crime and the guilt or- innocence of the accused, is admissible. The admission or exclusion of these objects and particularly of photographs is a matter which is within the sound discretion of the trial Judge, and the fact that a picture is gruesome is not sufficient to exclude it: Commonwealth v. Capps, 382 Pa. 72, 114 A. 2d 338; Commonwealth v. Bibalo, 375 Pa. 257, 100 A. 2d 45; Commonwealth v. Smith, 374 Pa. 220, 97 A. 2d 25; Commonwealth v. Simmons, 361 Pa. 391, 65 A. 2d 353; Commonwealth v. Wentzel, 360 Pa. 137, 61 A. 2d 309; Commonwealth v. Ferry, 326 Pa. 129, 191 A. 130.”
The photographs were used in the instant case to indicate the kind and location of the wounds and/or the position of the victim’s body and its location in the apartment. Under these facts, it is manifest that the photographs were properly admitted.
Defendant next complains of the charge of the Court and particularly of the refusal of the trial Judge to instruct the jury in accordance with defendant’s points for charge in connection with the effect of passion and self-defense. The Court’s charge must be considered as a whole, and not just isolated excerpts therefrom: Commonwealth v. Richardson, 392 Pa. 528, 546, 140 A. 2d 828; Commonwealth v. Donough, 377 Pa. 46, 53, 103 A. 2d 694; Commonwealth v. Patskin, 372 Pa. 402, 93 A. 2d 704; Commonwealth v. Barnak, 357 Pa. 391, 54 A. 2d 865; Commonwealth v. Schurtz, 337 Pa. 405, 411, 10 A. 2d 378; Commonwealth v. Moyer, 357 Pa. 181, 187, 53 A. 2d 736; Commonwealth v. Glenn, 321 Pa. 241, 183 A. 763; Commonwealth v. Holley, 358 Pa. 296, 56 A. 2d 546; Commonwealth v. Cargill, 357 Pa. [526]*526510, 55 A. 2d 373; Commonwealth v. Almeida, 362 Pa. 596, 600, 68 A. 2d 595; Commonwealth v. Becker, 326 Pa. 105, 191 A. 351; Commonwealth v. Stelma, 327 Pa. 317, 192 A. 906. The charge, considered as a whole was accurate and fair and contained no reversible error.
Defendant contends it was reversible error to refuse a point for charge relating to passion, and a point relating to self-defense. There is no merit in this contention. The point relating to passion was properly refused because it contained an inaccurate statement of the law. The point relating to self-defense was properly refused because the Court (a) had clearly and accurately covered the subject in its charge to the jury, and (b) had already affirmed several of defendant’s points for charge on the subject of self-defense, which points included the point in controversy.
Defendant also urges that the Court below erred in not granting a new trial on the ground of after-discovered evidence. The law in regard to after-discovered evidence is well settled. In Commonwealth v. Green, 358 Pa. 192, 56 A. 2d 95, the Court said (page 199) : “ ‘It is incumbent upon the party who moves for a new trial on the ground of newly discovered evidence to satisfy the court that the newly discovered evidence is such as could not with reasonable diligence have been discovered and produced at the trial; that it is not merely cumulative and that it is such as to render a different result probable on the retrial of the case. Commonwealth v. Russella et al., 117 Pa. Superior Ct. 359, 366; Commonwealth v. Brady, 76 Pa. Superior Ct. 488.’ ”
The records tendered as after-discovered evidence indicate that Clanton is emotionally unstable, but “is mentally responsible both to distinguish right from wrong and to adhere to the right.” This was not admis[527]*527sible under tbe above mentioned rule, as after-discovered evidence. Moreover, since the jury fixed the penalty at life imprisonment, it could not have resulted — -if admitted — in further mitigation of sentence.
Defendant’s last contention is that it was error for the Court to allow his wife, known as Bobbie Mae Clanton, to testify against him because such testimony is prohibited by §2(b) of the Act of May 23, 1887.
Defendant and Bobbie Mae were married on November 9, 1952, she under her maiden name of Buby Mitchell. The uncontradicted record shows that at the time of this marriage she was already lawfully married on April 3, 1948 to a man named Bichard Leroy Smith; and the uncontradicted evidence shows that she had never been divorced from Smith, and that Smith is still alive. The Court below therefore correctly decided that she was a competent witness: Commonwealth v. March, 248 Pa. 434, 94 A. 142. The test is not whether the parties to an allegedly lawful marriage believe they are lawfully married; the test is whether in law they are lawfully married: Commonwealth v. Mudgett, 174 Pa. 211, 254, 34 A. 588; Commonwealth v. Carey, 105 Pa. Superior Ct. 362, 364, 365, 161 A. 410; Commonwealth v. Gray, 72 Pa. Superior Ct. 279. See also: Commonwealth v. March, 248 Pa., supra. Furthermore, the burden is on defendant to prove incompetency : Cases supra. Robbie Mae was a competent witness.
Judgment and Sentence affirmed.
P. L. 158, 19 PS §683.