Commonwealth v. Washington

51 A. 759, 202 Pa. 148, 1902 Pa. LEXIS 483

• Court: Supreme Court of Pennsylvania
• Decided: March 24, 1902
• Docket: Appeal, No. 383
• Status: Published

Opinion

Opinion by

Mr. Justice Brown,

In their zealous effort on behalf of the appellant, counsel frankly admit that the case of the commonwealth against him was damaging, and, after the most careful examination of the testimony, given to it in view of the awful consequences of the jury’s finding to the poor and friendless prisoner, we are compelled to the conclusion that their verdict was just. No question is raised as to error in the admission or rejection of evidence by the learned trial judge, and we are to pass upon nothing but the correctness of his instructions to the jury, as challenged in the nine assignments before us.

The language of the court quoted in the first assignment did not, as is contended, submit to the jury the question whether murder had been committed in the perpetration of a robbery. On the contrary, they were distinctly told that the commonwealth did not ask for a conviction because murder had been committed in the attempted perpetration of that crime, and not a word was said in any portion of the charge about the actual perpetration of it by the prisoner. The court said to the jury, “ unless, therefore, the offense was committed in the perpetration or attempted perpetration of robbery, — and the district attorney says he does not ask you to say that this murder was committed in the attempted perpetration of a robbery, — therefore, to constitute murder in the first degree in this case, the act must have been done voluntarily; ” and it is too refined reasoning, even for this serious case, to say that the trial judge left it to the jury to say whether the murder had been committed in the perpetration of a robbery, because he did not affirmatively tell them that there was no evidence of the commission of that offense. What follows the language complained of in the first assignment clearly indicated to the jury what was necessary to constitute murder of the first degree, without regard to the perpetration, or attempted perpetration, of any of the felonies enumerated in the statute defining the two degrees of murder.

There was a mere suggestion of the defense of insanity. None was made that the jury ought to have considered, and the learned court was not called upon for any instructions as to what was necessary to establish it. If nothing at all had been said in the charge as to what was required, error would not have been committed; but, in saying what is the subject of the second assignment, taken in connection with what immediately follows, the learned judge declared the law as he found it in our uniform authorities: Ortwein v. Commonwealth, 76 Pa. 414; Lynch v. Commonwealth, 77 Pa. 205; Meyers v. Commonwealth, 83 Pa. 131; Coyle v. Commonwealth, 100 Pa. 573; Commonwealth v. Gerade, 145 Pa. 289.

The extracts which are the subjects of the third, fourth and last assignments must be read in connection with the portions of the charge from which they are taken, and, if so read, it is clear that they give simply the judge’s recollection of what had been testified to, which did not so materially vary from the testimony as to harm the prisoner. Moreover, he was protected from the effect of any statement of the testimony by the court, not materially varying from it, by the caution to the jury that they themselves must recall what the witnesses had said.

What is found in the fifth and sixth assignments are but portions of a charge in which the different degrees of homicide are fully and correctly stated, and the assignments are without merit. The answer to the question of the juror was also as correct and full as it ought to have been, in view of the fullness of the general charge just referred to.

The last assignment cannot be sustained. It complains that the trial judge failed to as fully present to the jury the features of the defense as ho did those of the commonwealth. The charge is not fairly open to this criticism; but, even if the court omitted to refer to the testimony which counsel for the defense considered important, attention ought to have been called to it when the opportunity was given to do so. The learned trial judge, just before he concluded his charge to the jury, in a spirit of concern lest he might have omitted something, asked whether there was anything that either the commonwealth or the defendant thought of; no answer was made, and complaint cannot now be heard that the prisoner was harmed by the inadequacy of the charge.

The trial was fair, and the charge, from which extracts are taken with no regard to their connection with what precedes or follows them, is entirely free from the errors which the zeal of counsel would have us believe were committed. The assignments are all overruled. The judgment is affirmed, and it is ordered that the record be remitted to the court below for the purpose of execution.