Opinion bv
Mb. Justice Williams,
The evidence before the court and jury on the trial of the defendants in this case disclosed a murder of shocking barbarity and as useless to the murderers as it was cruel. It appeared that the dwelling house of David Berkey and his wife, situated in Paint township, Somerset county, was forcibly entered on the night of June 2, 1896, by two masked men. They demanded money. Berkey and his wife were taken from their bed, bound, beaten and threatened with death if they did not at once tell the place where their money was kept. These modes of persuasion were supplemented by subjecting David Berkey to tor[286]*286ture. Fires made by lighted papers, and afterwards candles and a kerosene lamp, were kept burning under his feet until he was so terribly injured that he died from his injuries within a few months. The murderers secured about $125 in money as the result of their horrible night’s work and, after feasting upon such delicacies as the house could afford, in the presence of their victims, they took their departure. So far the facts were not involved in controversy. The burglary, the robbery, the burning which resulted in death were none of them the subjects of doubt or conflict on the trial. The great question about which the controversy raged before the jury was whether the defendants on trial were the persons by whom tins succession of crimes had been committed. The commonwealth alleged this to be so and gave a large amount of evidence tending to establish the allegation. The defendants denied all connection with the crimes and all knowledge of them, and endeavored to establish an alibi. A large amount of testimony was given in the effort to satisfy the jury that they were not guilty. The great question in the case was over the identification of the defendants. The course of the trial, the arguments of counsel, and the charge of the learned judge gave prominence to this question, and the verdict is a determination of it adversely to the defendants. On a previous trial, the same question had been contested, and with the same result. This question of fact has been settled therefore by the proper tribunal, and unless the verdict may have been influenced by some mistake of omission or commission on the part of the learned trial judge, it should be allowed to stand, and the defendants should suffer the penalty which the law affixes to the crime of which they have been convicted. The defendants allege that such mistakes were committed at the trial, and have assigned seven errors to the rulings of the trial judge, which we will consider in their order.
1. The first error assigned is to the action of the judge in overruling the challenge for cause made to E. B. Maurer, who was called as a juror, and who was challenged peremptorily by the defendant after the challenge for cause had been overruled. Upon examination on his voir dire the juror stated that he had been present for a day or two as a spectator at a previous trial, and heard a portion of the evidence on the part of the common[287]*287wealth; that he had also read such summaries of the evidence at that trial as had appeared in the local newspapers; and that from what he had so seen and heard, he had formed an opinion in relation to the guilt or innocence of the defendants, and had expressed it to others. He further stated in substance that this was a provisional opinion resting on what he had heard and read, and would not prevent his sitting as a juror at the trial and rendering a verdict in accordance with the evidence submitted. The challenge was a denial of his ability to do what he testified ho could do, viz: give to the defendants an impartial trial, and decide upon their guilt or innocence under the evidence in the case. The trier of this issue was the presiding judge. He had seen the juror, his general bearing, the manner of his answers, and he had heard the examination. The question for his decision was “Is it true that this juror stands disinterested, and is able to give the defendants an impartial trial? ” He believed the juror, and accordingly held him to bo qualified to sit on the trial of the case. Now we cannot bring before us the tones, the manner and apparent spirit and character of this juror, and for that reason we cannot review the influence such considerations exercised upon the mind of the learned judge. We have the answers only. Unless, therefore, the answers wore conclusive upon this question, as a matter of law, we have nothing before us on which the assignment can be sustained. But the answers were not conclusive. It is putting their effect as strongly against the juror as we are justified in doing if we say they raised a presumption, prima facie, of bias against the defendants, when they showed him to have formed and expressed an opinion. This presumption was removed if his further answers and his manner satisfied the learned judge that his mind was not fixed in the opinion expressed, but was still open to the influence of the testimony to be offered. The judge was so satisfied. He believed the juror to be capable of divesting his mind of opinions resting on imperfect knowledge of the facts, and judging impartially upon all the evidence that should come before him. We cannot say that he was not justified in reaching this conclusion. Impartiality is not ordinarily occasioned by ignorance. The ability to read periodicals and to think and talk about what one reads is not a disqualification for jury duty. Other circumstances being [288]*288equal, it should be regarded as affording some guaranty of fitness. It is prejudgment of the question about to be considered,, that disqualifies. If Maurer was able to hear the whole case-impartially, and decide it according to the evidence, he was-properly qualified to sit as a juror, and the judge was right in-overruling the challenge.
2. The next assignment of error complains of the admission of the testimony of William J. Horner. He was the tenant of David Berkey, occupying his farm. In the morning after the robbery, he discovered that his bam had been broken open during the night and a pair of horses, bridles, a saddle and a blanket had been taken away. He also found that the straps had been removed from his fly nets and were not in the bam. The straps were soon after discovered at Berkey’s house, where they had been used to bind his limbs while he was undergoing torture. The horses, with the other stolen property, were found later in the morning some eight or nine miles away in a field at the'side of a road leading from Berkey’s house to the home of the defendants. An examination of the ground about Berkey’s home showed that during the night the horses had been tied and fed near bjy and had been ridden by the robbers along the highway to the point at which they were found, where it was evident they had been abandoned, their riders completing their journey on foot. The testimony of Horner was offered for the purpose of laying these facts before the jury. It was objected to because it related to another offense than that for which the defendants were indicted, and because it was not proposed to show that the defendants were seen in possession of the horses. But the relevancy of this testimony did not depend on whether it tended to show the commission of another crime, but on whether the facts were so connected with the crime under investigation as to throw any light upon its history.
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Opinion bv
Mb. Justice Williams,
The evidence before the court and jury on the trial of the defendants in this case disclosed a murder of shocking barbarity and as useless to the murderers as it was cruel. It appeared that the dwelling house of David Berkey and his wife, situated in Paint township, Somerset county, was forcibly entered on the night of June 2, 1896, by two masked men. They demanded money. Berkey and his wife were taken from their bed, bound, beaten and threatened with death if they did not at once tell the place where their money was kept. These modes of persuasion were supplemented by subjecting David Berkey to tor[286]*286ture. Fires made by lighted papers, and afterwards candles and a kerosene lamp, were kept burning under his feet until he was so terribly injured that he died from his injuries within a few months. The murderers secured about $125 in money as the result of their horrible night’s work and, after feasting upon such delicacies as the house could afford, in the presence of their victims, they took their departure. So far the facts were not involved in controversy. The burglary, the robbery, the burning which resulted in death were none of them the subjects of doubt or conflict on the trial. The great question about which the controversy raged before the jury was whether the defendants on trial were the persons by whom tins succession of crimes had been committed. The commonwealth alleged this to be so and gave a large amount of evidence tending to establish the allegation. The defendants denied all connection with the crimes and all knowledge of them, and endeavored to establish an alibi. A large amount of testimony was given in the effort to satisfy the jury that they were not guilty. The great question in the case was over the identification of the defendants. The course of the trial, the arguments of counsel, and the charge of the learned judge gave prominence to this question, and the verdict is a determination of it adversely to the defendants. On a previous trial, the same question had been contested, and with the same result. This question of fact has been settled therefore by the proper tribunal, and unless the verdict may have been influenced by some mistake of omission or commission on the part of the learned trial judge, it should be allowed to stand, and the defendants should suffer the penalty which the law affixes to the crime of which they have been convicted. The defendants allege that such mistakes were committed at the trial, and have assigned seven errors to the rulings of the trial judge, which we will consider in their order.
1. The first error assigned is to the action of the judge in overruling the challenge for cause made to E. B. Maurer, who was called as a juror, and who was challenged peremptorily by the defendant after the challenge for cause had been overruled. Upon examination on his voir dire the juror stated that he had been present for a day or two as a spectator at a previous trial, and heard a portion of the evidence on the part of the common[287]*287wealth; that he had also read such summaries of the evidence at that trial as had appeared in the local newspapers; and that from what he had so seen and heard, he had formed an opinion in relation to the guilt or innocence of the defendants, and had expressed it to others. He further stated in substance that this was a provisional opinion resting on what he had heard and read, and would not prevent his sitting as a juror at the trial and rendering a verdict in accordance with the evidence submitted. The challenge was a denial of his ability to do what he testified ho could do, viz: give to the defendants an impartial trial, and decide upon their guilt or innocence under the evidence in the case. The trier of this issue was the presiding judge. He had seen the juror, his general bearing, the manner of his answers, and he had heard the examination. The question for his decision was “Is it true that this juror stands disinterested, and is able to give the defendants an impartial trial? ” He believed the juror, and accordingly held him to bo qualified to sit on the trial of the case. Now we cannot bring before us the tones, the manner and apparent spirit and character of this juror, and for that reason we cannot review the influence such considerations exercised upon the mind of the learned judge. We have the answers only. Unless, therefore, the answers wore conclusive upon this question, as a matter of law, we have nothing before us on which the assignment can be sustained. But the answers were not conclusive. It is putting their effect as strongly against the juror as we are justified in doing if we say they raised a presumption, prima facie, of bias against the defendants, when they showed him to have formed and expressed an opinion. This presumption was removed if his further answers and his manner satisfied the learned judge that his mind was not fixed in the opinion expressed, but was still open to the influence of the testimony to be offered. The judge was so satisfied. He believed the juror to be capable of divesting his mind of opinions resting on imperfect knowledge of the facts, and judging impartially upon all the evidence that should come before him. We cannot say that he was not justified in reaching this conclusion. Impartiality is not ordinarily occasioned by ignorance. The ability to read periodicals and to think and talk about what one reads is not a disqualification for jury duty. Other circumstances being [288]*288equal, it should be regarded as affording some guaranty of fitness. It is prejudgment of the question about to be considered,, that disqualifies. If Maurer was able to hear the whole case-impartially, and decide it according to the evidence, he was-properly qualified to sit as a juror, and the judge was right in-overruling the challenge.
2. The next assignment of error complains of the admission of the testimony of William J. Horner. He was the tenant of David Berkey, occupying his farm. In the morning after the robbery, he discovered that his bam had been broken open during the night and a pair of horses, bridles, a saddle and a blanket had been taken away. He also found that the straps had been removed from his fly nets and were not in the bam. The straps were soon after discovered at Berkey’s house, where they had been used to bind his limbs while he was undergoing torture. The horses, with the other stolen property, were found later in the morning some eight or nine miles away in a field at the'side of a road leading from Berkey’s house to the home of the defendants. An examination of the ground about Berkey’s home showed that during the night the horses had been tied and fed near bjy and had been ridden by the robbers along the highway to the point at which they were found, where it was evident they had been abandoned, their riders completing their journey on foot. The testimony of Horner was offered for the purpose of laying these facts before the jury. It was objected to because it related to another offense than that for which the defendants were indicted, and because it was not proposed to show that the defendants were seen in possession of the horses. But the relevancy of this testimony did not depend on whether it tended to show the commission of another crime, but on whether the facts were so connected with the crime under investigation as to throw any light upon its history. We think it clear that this testimony was explanatory of facts that were before the jury, and that it tended to show how, and by what route, the robbers fled from Berkey’s house; and how it was possible for the defendants to have been seen so early in the morning of the 3d of June at points where witnesses placed them, consistently with the allegation of the commonwealth that they were ■ the perpetrators of the crimes at Berkey’s house. It was also-relevant as showing part of the pertinent history of the crime [289]*289■under investigation, and tbe deliberation with which it had been planned in all its details.
The third assignment oí error is to the admission of the testimony relating to the possession of Berkey prior to the robbery of a 810.00 confederate note, and the possession on the day after the robbery by James Roddy of a note similar in appearance and of the same denomination, which was carefully destroyed by him. This assignment cannot be sustained. The evidence, together with Roddy’s declaration about the bill or note, how he came by it, and why he destroyed it, was relevant upon the question of identity. It was not conclusive upon that question, but it related to it, and with the other facts relating to the same subject was properly submitted to the jury as part of the chain of circumstances tending to identify the defendants as the perpetrators of the crimes committed on the night of the 2d of June.
4. This assignment is directed at the admission of the dying declarations of David Berkey. Six objections, reducible to four, are made against their admission. The first of these alleges that the commonwealth was under no necessity to use the dying declarations and, therefore, had no right to use them. This rests on a misapprehension of the rule relating to their admission. The “necessity” to which the text books and the cases refer is not the exigency of any particular case, but a public necessity which civilized society feels the pressure of, for the protection of human life by the punishment of man slayers. Before the offense of murder is completed, the victim must die. While he feels death to be impending, but while consciousness continues, what he declares as to the origin of his injuries and the person at whose hands he has received them is competent, not in a particular case where the defendant could not otherwise be convicted, but in all cases, no matter how ample the evidence of identification through other sources may be. But the second objection is that “ the simple statement contained in the declaration ‘ I am satisfied that the Roddy boys, brought to my house- by the officers, are the same men that robbed and tortured me ’ is not a sufficient identification of the persons on trial.” This objection should be read in connection with the whole statement or declaration as made by Berkey. It runs thus, “ Two men came into my bedroom. I asked them what they wanted here, and one of them said ‘ Money, by God and [290]*290we will have it.’ Both men had revolvers, and said ‘ do you see these? ’ I said ‘Yes.’ They told me if I had any prayers to say, I was to say them, that they would shoot me. I told them to shoot, but they did not. Then they tied me, both hands and feet, and carried me out of bed into a rocking chair and hit me in the mouth, knocking a tooth loose. Then they ransacked the safe. I told them my money was in my vest. They got it, it was about $125 in paper and silver. They burned my feet some before getting my money. They continued to burn my feet, demanding more money or government bonds. They first burned my feet with paper. Afterwards with oil lamps and tallow candles. They ransacked the house from cellar to attic. They went to the cellar, brought up pies, cakes and milk, and eat and drank. Then they left my house, and I am satisfied the two Roddy boys, brought to my house by the officers, are the same that robbed and tortured me.” This is a vivid statement of the occurrences of that night, showing the opportunity Berkey had to see his torturers, to know their voices, their figures, their movements, their eyes, the color of their hair, and their relative size and manner. Every peculiarity of each of them must have been literally burned into the memory of both David Berkey and his wife. They were brought to the house of their victim. He looked at them to see if they were the same men he had seen on the night of the 2d of June. His conclusion is “Yes; I am satisfied they are the same men. My mind is at rest on the subject. I have no doubt.” This was a distinct identification, and plainly admissible. The third objection is that Berkey gave no reasons for thinking the Roddy boys were the men who robbed and tortured him. He gave his opportunities for observing the robbers on the night of the crime fully. He examined the Roddy boys, and then he said, “Yes, they are the same.” This was enough. His belief rested on his opportunities for observing the men, and he gave these fully. The last objection is to the fact that a mask was put on the faces of the Roddy boys, so as to leave the same portions of the head and face open for examination as was left of the heads and faces of the robbers on that night. This was at the request of Mr. Berkey. He also desired the defendants to speak. He seems to have desired to “ satisfy ” himself upon the question of identity before expressing an opinion. The mask was used without objection or re[291]*291monstrance from any one, and apparently with the honest purpose of deciding, after a careful examination, whether the defendants were the criminals by whom the robbery and burning had been committed or not. We do not see that, even if the propriety of the use of the mask on the defendants was questionable, it would be a valid objection to the admission of the dying declarations of David Berkey. It might affect the credit to which it would otherwise be entitled, but not its admissibility. But we are by no means prepared to concede that the use of the mask, under the circumstances, was questionable. The handkerchief fell from the face of one of the defendants on the night of the robbery and remained off for some considerable time. The face of the other was not seen except with the handkerchief upon it. His appearance as they saw him move about with the mask on was fixed indelibly on their minds. It is easy to see that they might be able to identify him much more easily and certainly, if allowed to see him dressed and disguised as he had been during the night of the 2d of June, than by seeing him without disguise, and as they had never before seen him.
The criticism upon the charge of the learned judge which constitutes the fifth assignment of error is merely verbal. Possibly the word “ stated ” would have been preferable to the word “ claimed ” in referring to the testimony of the witnesses who saw two persons near the Osborne Cut whom they did not then know, but who they said at the trial resembled the defendants. But the learned judge was not attempting to give the purport of their testimony, only to refer the jury to the general class to which these, among other witnesses, belonged. Their testimony related to the identification of the defendants, and he referred them to their own recollection of the testimony.
6. The learned judge did not undertake to recount the witnesses on either side, or to restate their testimony. The facts had been discussed at great length by counsel, and the evidence had been marshaled in support of their respective theories. It remained only for the court to give appropriate legal instructions and to indicate the questions for the determination of the jury. This was all the learned judge attempted to do, other than to refer in the most general way to the several lines of testimony applicable to the several questions submitted to them. This was carefully and correctly done.
[292]*2927. The refusal of a motion for a new trial is an error in law only when it is apparent that such refusal amounts to a clear abuse of discretion. This is not alleged in this case, nor do we see any reason why it should be. There was conflict in the evidence. The proper tribunal to settle that conflict and determine where the truth lies is the jury. That tribunal, with the aid of the fullest argument, and an impartial charge, has by its verdict settled the conflict by finding that the defendants were the two men who broke into the house of David Berkey in June last, robbed him of his money, tortured him, and as a result of this torture, murdered him. This is a second conviction. It is based on testimony that if believed justifies the verdict, and we are of opinion that it should not be disturbed because of the reasons presented to us on this appeal.
The judgment is therefore affirmed, and the record remitted for further proceedings according to law.