Opinion by
Mr. Chief Justice Sterrett,
On an indictment properly charging the defendant, James A. Clemmer, with the murder of Emma P. Kaiser, on the evening of October 28, 1896, he was duly tried, found guilty of murder of the first degree and sentenced to suffer the penalty affixed by the law to that high felony.
The testimony introduced by the commonwealth tended strongly to prove not only that Mrs. Kaiser was brutually murdered at the time and place laid in the indictment, but also that the murder was committed by the defendant and Charles O. Kaiser, Jr., the murdered woman’s husband, in pursuance of a conspiracy, the object of which was to secure the proceeds of certain policies of insurance which had been placed on Mrs. Kaiser’s life; that, while driving with her husband, Mrs. Kaiser was intentionally shot and killed by the defendant, who, at the same time, and in pursuance of the prearranged plan, shot and wounded her husband in the arm. On the trial, the murdered woman’s husband testified, in substance, that the defendant fired the fatal shot. One of the commonwealth’s witnesses, Elizabeth DeKalb, testified that the defendant admitted his guilt to her and gave her Mrs. Kaiser’s watch, with instructions to throw it away. Letters from the defendant to the same witness, urgently requesting her not to testify against him, were also produced and put in evidence by the commonwealth. It was also testified that on the evening of the murder the defendant had hired a horse which was subsequently seen near the [218]*218scene of the murder; and one of the witnesses identified the defendant as a person he had seen near the place of the shooting and about the time it occurred. Numerous facts and circumstances were also in evidence which tended to corroborate the commonwealth’s witnesses and establish the fact of defendant’s guilty participation hi the murder. Among these were his admissions and expressions to several persons, tending- to show his knowledge of the killing of Mrs. Kaiser; also his flight from the state, change of his name, and the finding of the murdered woman’s watch at Pottsville, where Elizabeth DeKalb testified she had dropped it at the defendant’s request. Without further reference to the substance of the evidence on which the commonwealth relied, it is sufficient to say that, if believed by the jury, it was quite sufficient to establish the corpus delicti, and the fact that the defendant actively participated in the murder of Mrs. Kaiser, under circumstances which indicate that the killing was wilful, deliberate and premeditated — a coldblooded murder.
After a fair and impartial trial, in which all the defendant’s rights appear to have been carefully guarded, the case was fairly. submitted to the jury in a clear, comprehensive and fully adequate charge, to which no just exception can be taken, and they by their verdict pronounced him guilty of murder of the first degree. A subsequent consideration of the defendant’s motion in arrest of judgment, reasons for a new trial, etc., appears to have satisfied the learned tidal court that there was no material error in the proceedings leading up to and including the verdict; and thereupon, final judgment was pronounced. Our consideration of the record, including the rulings and instructions of the court, has satisfied us all as to the substantial correctness of the proceeding in the court below; and we might well conclude with an affirmance of the judgment, but the zealous efforts of counsel in behalf of their client have induced them to present numerous specifications of error, nearly all of which have been satisfactorily disposed of by the learned trial judge in his opinion overruling the motion in arrest of judgment and reasons for new trial.
The first specification charges error in refusing to quash the array of petit jurors on the ground that John H. McDowell, who participated in the selection of the persons whose names [219]*219were placed in the jury wheel, was not eligible to the office of jury commissioner at the November election in 1897. This is the result of an erroneous construction of the act under which Mr. McDowell was re-elected jury commissioner in 1897, but if this were not so, a sufficient answer to the objection is that, as against all parties except the commonwealth, his acts as jury commissioner, under his second election, could not be called in question. He was at least jury commissioner de facto: Campbell v. Commonwealth, 96 Pa. 344. In that case, two persons sat as associate judges not learned in the law, and participated with the president of the court in the trial and sentence of persons convicted of arson. It was objected that under the present constitution the electors of the county in which the court sat had no power to elect lay judges; but this Court held that the associate judges in question were judges de facto, and as against everybody except the commonwealth they were judges de jure, and that their title to the office they respectively held could not be questioned in any other way than by writ o£ quo warranto at the suit of the commonwealth.
The second, fourth and fifth specifications, relating to the refusal of the court to quash the array of petit jurors, because certain names that had been in the previous array, which had been quashed, had been again placed in the wheel, etc., cannot be sustained. It appeared that the former array had been quashed by the court because of an irregularity hr the method of selection, and not because of any objection to the jurors themselves. The learned judge of the court below, in his opinion on the motion in arrest of judgment, says: “Each commissioner and the judge came in with new lists made up without reference to those who had been selected in January. It was in every sense a new selection from the body of the county, even if some names were the same as had been before deposited ” in the wheel. It thus clearly appears that the defendant could not have been in any way injured by the action of the jury commissioners.
There is no merit in the third specification which complains of the court’s action in sending the bill of indictment on which the defendant was convicted before the grand jury while a previous indictment was pending. In Rosenberger v. Com., 118 Pa. 77, it was said: “ It was also urged that no conviction [220]*220could be bad upon tbe second indictment so long as the first— the missing indictment — was undisposed of. There is no merit in this. If both indictments had been in court, the defendant could have been tried on either.”
The sixth specification, alleged incompetency of Charles O. Kaiser, Jr., as a witness for the commonwealth, because he had been previously convicted of murder and, when called, was under sentence of death. Under the Act of May 28, 1887, P. L. 158, we think he was clearly a competent witness.
The seventh to the thirteenth specifications, inclusive, and also the twenty-first specification, relating to various rulings of . the court below on evidence offered to prove that the motive of the murderer was to obtain the proceeds of insurance policies on the life of the murdered woman, cannot be sustained. There was uo error in any of these rulings. Nor do we find any error in the instructions referred to in the fourteenth to the twentieth specifications, inclusive, and in the twenty-second and twenty-third specifications. There is nothing in either of them that requires extended comment.
We find nothing in the record to justify the two remaining specifications. They both appear to be lacking in fairness to the learned trial judge.
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Opinion by
Mr. Chief Justice Sterrett,
On an indictment properly charging the defendant, James A. Clemmer, with the murder of Emma P. Kaiser, on the evening of October 28, 1896, he was duly tried, found guilty of murder of the first degree and sentenced to suffer the penalty affixed by the law to that high felony.
The testimony introduced by the commonwealth tended strongly to prove not only that Mrs. Kaiser was brutually murdered at the time and place laid in the indictment, but also that the murder was committed by the defendant and Charles O. Kaiser, Jr., the murdered woman’s husband, in pursuance of a conspiracy, the object of which was to secure the proceeds of certain policies of insurance which had been placed on Mrs. Kaiser’s life; that, while driving with her husband, Mrs. Kaiser was intentionally shot and killed by the defendant, who, at the same time, and in pursuance of the prearranged plan, shot and wounded her husband in the arm. On the trial, the murdered woman’s husband testified, in substance, that the defendant fired the fatal shot. One of the commonwealth’s witnesses, Elizabeth DeKalb, testified that the defendant admitted his guilt to her and gave her Mrs. Kaiser’s watch, with instructions to throw it away. Letters from the defendant to the same witness, urgently requesting her not to testify against him, were also produced and put in evidence by the commonwealth. It was also testified that on the evening of the murder the defendant had hired a horse which was subsequently seen near the [218]*218scene of the murder; and one of the witnesses identified the defendant as a person he had seen near the place of the shooting and about the time it occurred. Numerous facts and circumstances were also in evidence which tended to corroborate the commonwealth’s witnesses and establish the fact of defendant’s guilty participation hi the murder. Among these were his admissions and expressions to several persons, tending- to show his knowledge of the killing of Mrs. Kaiser; also his flight from the state, change of his name, and the finding of the murdered woman’s watch at Pottsville, where Elizabeth DeKalb testified she had dropped it at the defendant’s request. Without further reference to the substance of the evidence on which the commonwealth relied, it is sufficient to say that, if believed by the jury, it was quite sufficient to establish the corpus delicti, and the fact that the defendant actively participated in the murder of Mrs. Kaiser, under circumstances which indicate that the killing was wilful, deliberate and premeditated — a coldblooded murder.
After a fair and impartial trial, in which all the defendant’s rights appear to have been carefully guarded, the case was fairly. submitted to the jury in a clear, comprehensive and fully adequate charge, to which no just exception can be taken, and they by their verdict pronounced him guilty of murder of the first degree. A subsequent consideration of the defendant’s motion in arrest of judgment, reasons for a new trial, etc., appears to have satisfied the learned tidal court that there was no material error in the proceedings leading up to and including the verdict; and thereupon, final judgment was pronounced. Our consideration of the record, including the rulings and instructions of the court, has satisfied us all as to the substantial correctness of the proceeding in the court below; and we might well conclude with an affirmance of the judgment, but the zealous efforts of counsel in behalf of their client have induced them to present numerous specifications of error, nearly all of which have been satisfactorily disposed of by the learned trial judge in his opinion overruling the motion in arrest of judgment and reasons for new trial.
The first specification charges error in refusing to quash the array of petit jurors on the ground that John H. McDowell, who participated in the selection of the persons whose names [219]*219were placed in the jury wheel, was not eligible to the office of jury commissioner at the November election in 1897. This is the result of an erroneous construction of the act under which Mr. McDowell was re-elected jury commissioner in 1897, but if this were not so, a sufficient answer to the objection is that, as against all parties except the commonwealth, his acts as jury commissioner, under his second election, could not be called in question. He was at least jury commissioner de facto: Campbell v. Commonwealth, 96 Pa. 344. In that case, two persons sat as associate judges not learned in the law, and participated with the president of the court in the trial and sentence of persons convicted of arson. It was objected that under the present constitution the electors of the county in which the court sat had no power to elect lay judges; but this Court held that the associate judges in question were judges de facto, and as against everybody except the commonwealth they were judges de jure, and that their title to the office they respectively held could not be questioned in any other way than by writ o£ quo warranto at the suit of the commonwealth.
The second, fourth and fifth specifications, relating to the refusal of the court to quash the array of petit jurors, because certain names that had been in the previous array, which had been quashed, had been again placed in the wheel, etc., cannot be sustained. It appeared that the former array had been quashed by the court because of an irregularity hr the method of selection, and not because of any objection to the jurors themselves. The learned judge of the court below, in his opinion on the motion in arrest of judgment, says: “Each commissioner and the judge came in with new lists made up without reference to those who had been selected in January. It was in every sense a new selection from the body of the county, even if some names were the same as had been before deposited ” in the wheel. It thus clearly appears that the defendant could not have been in any way injured by the action of the jury commissioners.
There is no merit in the third specification which complains of the court’s action in sending the bill of indictment on which the defendant was convicted before the grand jury while a previous indictment was pending. In Rosenberger v. Com., 118 Pa. 77, it was said: “ It was also urged that no conviction [220]*220could be bad upon tbe second indictment so long as the first— the missing indictment — was undisposed of. There is no merit in this. If both indictments had been in court, the defendant could have been tried on either.”
The sixth specification, alleged incompetency of Charles O. Kaiser, Jr., as a witness for the commonwealth, because he had been previously convicted of murder and, when called, was under sentence of death. Under the Act of May 28, 1887, P. L. 158, we think he was clearly a competent witness.
The seventh to the thirteenth specifications, inclusive, and also the twenty-first specification, relating to various rulings of . the court below on evidence offered to prove that the motive of the murderer was to obtain the proceeds of insurance policies on the life of the murdered woman, cannot be sustained. There was uo error in any of these rulings. Nor do we find any error in the instructions referred to in the fourteenth to the twentieth specifications, inclusive, and in the twenty-second and twenty-third specifications. There is nothing in either of them that requires extended comment.
We find nothing in the record to justify the two remaining specifications. They both appear to be lacking in fairness to the learned trial judge. The amount of testimony introduced by the defendant was very much less than that of the commonwealth, and it is not at all surprising that the time required for necessary reference to the former should be very much less than that necessarily occupied in calling the jury’s attention to the latter.
Fourteen points for charge, bearing on nearly every possible phase of the defense, were submitted to and answered by the learned trial judge quite as favorably to the defendant as he was entitled to. Ten of these points were affirmed without qualification, two were properly qualified and the remaining two were refused. Neither of the four that were not affirmed without qualification has been assigned as error.
In affirming the following points without qualification the learned judge instructed the jury, in the language thereof, as follows:
“2. In order to justify an inference of guilt the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt.
[221]*221“ 3. It is not sufficient that the circumstances, pointing to guilt create a probability, even a strong probability, of the prisoner’s guilt; but to convict, the jury must be convinced beyond a reasonable doubt that the circumstances exclude, to a moral certainty, every other hypothesis except that of guilt. . . .
“5. Questions, concerning the identity of persons, animals and vehicles are liable to confusion, uncertainty and mistake, and before the jury can convict the prisoner of the murder of Emma P. Kaiser it must be convinced beyond a reasonable doubt that the prisoner was present and either assisted in the killing, or was present counseling and abetting it. . . .
“ 8. An accomplice occupies a position of disrepute; and from the very character of such a witness, the law and the courts look with great caution upon their testimony, whilst their credibility is for the jury, yet taking into account their disreputable character and position, it would be very dangerous and unsafe for the jury to convict the prisoner upon such testimony. . . .
“ 10. The burden of proof rests upon the commonwealth from first to the last to satisfy the jury beyond a reasonable doubt that the prisoner either committed the murder of Emma P. Kaiser, or aided, assisted or abetted it, or they must render a verdict of not guilty.
“ 11. The presumption of innocence clings to the prisoner through every successive step of his trial, and this presumption is never weakened, relaxed or destroyed until there is a conviction. . . .
“13. The testimony of Elizabeth DeKalb and Charles O. Kaiser, Jr., both being self-confessed accomplices, cannot be considered by the jury as corroborating each other; the testimony of each must stand alone, and it would be unsafe to convict the prisoner on such testimony unless such testimony is corroborated by other facts and circumstances independent of the testimony of both.”
These and other instructions given by affirming other points of the defendant undoubtedly furnished as favorable a rule as he was entitled to for the guidance of the jury in dealing with the evidence before them. If other specific instructions were deemed desirable they should have been requested. The trial was conducted throughout with marked fairness and impartiality.
[222]*222We have given to the consideration of this case that degree of care which the gravity of the judgment against the defendant demands, and our conclusion is that there is no error in the record before us that requires correction.
The judgment of the court below is therefore affirmed, and it is ordered that the record be remitted to said court for the purpose of execution.