Chief Justice Agnew
delivered the opinion of the court, May 10 th 1875.
We think the assignments of error in this case fail to show any ground for reversal, except of the sentence of the Court of Oyer and Terminer. It was certainly competent to show, that the [189] prisoner and the deceased had visited the same woman, and to follow this by evidence, that immediately after the homicide, the prisoner referred to the fact that he warned the deceased to let her alone, that she would be a curse to any one, and now his words had come to pass. Jealousy is among the strongest of the human passions, and it certainly was for the jury to determine, in the absence of any other assignable motive, whether it was the cause of the prisoner’s act. The deceased and the prisoner had been apparently upon good terms, and lived together as single men. The witness, Amelia Wertman, testified, that she was engaged to the deceased, and that the prisoner had visited her, and proposed to her to run away. If nothing had been secretly rankling in his heart, the shooting under the circumstances stated was singular and scarcely to he accounted for. The evidence of intoxication at the time of the shooting is very slight, and the degree of intoxication must have been very little. Afterwards he appears to have been a good deal more so, though not excessively drunk.
There was no evidence that the deceased had used threatening language, or acts toward the prisoner. Hence, the answer of the court to the fifth point was correct. The facts were referred to the jury. The only material question is, whether the evidence in the case contained the elements, or “ ingredients” of murder in the first degree. It is certainly true, that the Commonwealth must establish the existence of these elements, otherwise no presumption arises from the killing, of an offence higher than murder in the second degree. But if the evidence may reasonably admit of the conclusion, that the murder was wilful, deliberate and premeditated, it is for the jury to pronounce upon the degree of the crime, and a court of error will not reverse. In giving an interpretation to the Act of 15th of February 1870, we have said, if there have appeared in the testimony the ingredients to constitute murder in the first degree, our power ceases. We do not sit to hear the case as upon a motion for a. new trial, to determine where the weight of evidence lies, but “ to determine whether the ingredients necessary to constitute murder in the first degree shall have been proved to exist.” These being proved, the jury must determine the guilt or innocence of the prisoner: Grant v. Commonwealth, 21 P. F. Smith 495.
This leads us to inquire into the circumstances of the killing. But one witness, Charles McCarty, was present. His account of the affair is concise and clear. On Sunday, October 25th 1874, McCarty was with the prisoner, who invited him to come into the house where he and the deceased lived. On going in, Dieter, the deceased, was lying in a bunk, apparently asleep. McCue, the prisoner, and McCarty took a seat by the window and took a drink of wine. McCue gave McCarty something to apply to his sore eyes, and while he was applying it McCue was hunting for [190] some money in his pockets, took off his vest, and laid a pistol on the window sill. McCarty said, “ Barney do you carry a pistol ?” He said he did; it stood him in hand to, and he would use it probably before I thought. Dieter jumped up and said : “ You are always talking of putting a bullet into somebody. If you think you can put one into me, come out and try it.” He then made for the door, putting off his coat as he went. McCarty jumped out before him, and Dieter ran against him outside of the door, throwing him upon his hands and knees. While they were going out McCue grabbed the pistol from the window, and followed. The witness ran across the street, and McCue followed Dieter closely, and when within four feet of him fired, the ball entering Dieter’s right side in front between the seventh and eighth ribs. Dieter said “ Barney, you have put one of them into meand approached McCue. McCue raised the pistol, and Dieter knocked it out of his hand, closed with McCue, threw him down, and choked him until McCue gave up. The pistol was picked up and found cocked. One load was discharged, two loads remained in it, and the fourth chamber seemed not to have been charged. These are the important facts bearing upon the shooting. The act was clearly unprovoked and needless. The deceased was unarmed, and had made no threats or demonstrations against McCue. If what he said when he jumped up and ran out, may be construed as idle bravado, it was neither justification nor excuse for the shooting. The pistol was loaded with three charges; it was within four feet, or six, as another witness states, of Dieter’s front side, and was discharged right at him, the ball penetrating the liver, a vital organ ; and the prisoner raised it again to discharge it. What then must we say of an act so plainly directed at the life of another, so unprovoked and so barbarous, done with a deadly weapon, under no circumstances of rage or passion, produced by any reasonable cause of provocation ? Clearly, there was sufficient time to think, deliberate and premeditate the act; as clearly the act was wilful and intentional, and the instrument used a deadly one, aimed at a vital part, where death was the probable and the natural consequence of the act. What other, intention, than an intention to kill, could be rationally inferred from the whole conduct of the prisoner ? The motive may be obscure, indeed may not be fathomed; but the act was there, plainly and fully obvious to the senses, and the effect of it clearly open to the pi-isoner’s own mind. The ingredients of the crime of murder in the first degree were all there, however inscrutable may be the causes which moved the prisoner to commit the deed. When all the elements of the crime are present, and when there can be but one rational inference from the act itself, retribution cannot be avoided, because the motive lies hidden and unrevealed in the heart of him only, who could disclose it.
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Chief Justice Agnew
delivered the opinion of the court, May 10 th 1875.
We think the assignments of error in this case fail to show any ground for reversal, except of the sentence of the Court of Oyer and Terminer. It was certainly competent to show, that the [189] prisoner and the deceased had visited the same woman, and to follow this by evidence, that immediately after the homicide, the prisoner referred to the fact that he warned the deceased to let her alone, that she would be a curse to any one, and now his words had come to pass. Jealousy is among the strongest of the human passions, and it certainly was for the jury to determine, in the absence of any other assignable motive, whether it was the cause of the prisoner’s act. The deceased and the prisoner had been apparently upon good terms, and lived together as single men. The witness, Amelia Wertman, testified, that she was engaged to the deceased, and that the prisoner had visited her, and proposed to her to run away. If nothing had been secretly rankling in his heart, the shooting under the circumstances stated was singular and scarcely to he accounted for. The evidence of intoxication at the time of the shooting is very slight, and the degree of intoxication must have been very little. Afterwards he appears to have been a good deal more so, though not excessively drunk.
There was no evidence that the deceased had used threatening language, or acts toward the prisoner. Hence, the answer of the court to the fifth point was correct. The facts were referred to the jury. The only material question is, whether the evidence in the case contained the elements, or “ ingredients” of murder in the first degree. It is certainly true, that the Commonwealth must establish the existence of these elements, otherwise no presumption arises from the killing, of an offence higher than murder in the second degree. But if the evidence may reasonably admit of the conclusion, that the murder was wilful, deliberate and premeditated, it is for the jury to pronounce upon the degree of the crime, and a court of error will not reverse. In giving an interpretation to the Act of 15th of February 1870, we have said, if there have appeared in the testimony the ingredients to constitute murder in the first degree, our power ceases. We do not sit to hear the case as upon a motion for a. new trial, to determine where the weight of evidence lies, but “ to determine whether the ingredients necessary to constitute murder in the first degree shall have been proved to exist.” These being proved, the jury must determine the guilt or innocence of the prisoner: Grant v. Commonwealth, 21 P. F. Smith 495.
This leads us to inquire into the circumstances of the killing. But one witness, Charles McCarty, was present. His account of the affair is concise and clear. On Sunday, October 25th 1874, McCarty was with the prisoner, who invited him to come into the house where he and the deceased lived. On going in, Dieter, the deceased, was lying in a bunk, apparently asleep. McCue, the prisoner, and McCarty took a seat by the window and took a drink of wine. McCue gave McCarty something to apply to his sore eyes, and while he was applying it McCue was hunting for [190] some money in his pockets, took off his vest, and laid a pistol on the window sill. McCarty said, “ Barney do you carry a pistol ?” He said he did; it stood him in hand to, and he would use it probably before I thought. Dieter jumped up and said : “ You are always talking of putting a bullet into somebody. If you think you can put one into me, come out and try it.” He then made for the door, putting off his coat as he went. McCarty jumped out before him, and Dieter ran against him outside of the door, throwing him upon his hands and knees. While they were going out McCue grabbed the pistol from the window, and followed. The witness ran across the street, and McCue followed Dieter closely, and when within four feet of him fired, the ball entering Dieter’s right side in front between the seventh and eighth ribs. Dieter said “ Barney, you have put one of them into meand approached McCue. McCue raised the pistol, and Dieter knocked it out of his hand, closed with McCue, threw him down, and choked him until McCue gave up. The pistol was picked up and found cocked. One load was discharged, two loads remained in it, and the fourth chamber seemed not to have been charged. These are the important facts bearing upon the shooting. The act was clearly unprovoked and needless. The deceased was unarmed, and had made no threats or demonstrations against McCue. If what he said when he jumped up and ran out, may be construed as idle bravado, it was neither justification nor excuse for the shooting. The pistol was loaded with three charges; it was within four feet, or six, as another witness states, of Dieter’s front side, and was discharged right at him, the ball penetrating the liver, a vital organ ; and the prisoner raised it again to discharge it. What then must we say of an act so plainly directed at the life of another, so unprovoked and so barbarous, done with a deadly weapon, under no circumstances of rage or passion, produced by any reasonable cause of provocation ? Clearly, there was sufficient time to think, deliberate and premeditate the act; as clearly the act was wilful and intentional, and the instrument used a deadly one, aimed at a vital part, where death was the probable and the natural consequence of the act. What other, intention, than an intention to kill, could be rationally inferred from the whole conduct of the prisoner ? The motive may be obscure, indeed may not be fathomed; but the act was there, plainly and fully obvious to the senses, and the effect of it clearly open to the pi-isoner’s own mind. The ingredients of the crime of murder in the first degree were all there, however inscrutable may be the causes which moved the prisoner to commit the deed. When all the elements of the crime are present, and when there can be but one rational inference from the act itself, retribution cannot be avoided, because the motive lies hidden and unrevealed in the heart of him only, who could disclose it.
It.is true the time was short and the bullet swift, and God alone [191] knows the motive; but the time was not too short or the messenger of death too speedy, to take from the prisoner a consciousness of the true nature of his act. Of this, therefore, the jury must judge. They had ground for their verdict and their conclusion, that the prisoner intended to kill, and wilfully, and with deliberation and premeditation shot Dieter, was not irrational or plainly unfounded. The circumstances indicated “ a wicked and depraved disposition, a heart fatally bent on mischief.” The act was not more sudden than that of O’Harra, who killed Aitkins, and had less provocation than his: Commonwealth v. O’Harra, Appendix to 7 Smith’s Laws 694. Without adopting all the language of Chief Justice McKean in that case, I may use that of Judge Strong in Cathcart v. The Commonwealth, 1 Wright 112 : “ If the killing was not accidental, then malice and a design to kill were to be presumed from the use of a deadly weapon; for the law adopts the common rational belief that a man intends the usual immediate and natural consequences of his voluntary act. Human reason will not tolerate the denial that a man who intentionally, not accidentally, fires a musket ball through the body of his wife, and thus inflicts a mortal wound, has a heart fatally bent on mischief, and intends to kill.” We are of opinion, therefore, that the elements of the crime found by the jury existed in the evidence, and so far there was no error.
But there is one error for which the sentence of the court must be reversed. It does not appear from the record, that the prisoner was asked before sentence, why sentence of death should not be pronounced upon him. This is a fatal error, and affects the merits of the case. It is necessary to ask the prisoner this, that he may have an opportunity, before the penalty of death be visited upon him, to plead in bar of the sentence any matter sufficient to prevent its execution. He may have found out some good reason why the trial was not legal, or he may plead a pardon, or supervening insanity. The question and the answer that he hath nothing to say other than that which he hath before said, or this in substance, must appear in the record before the sentence can be pronounced: Prine v. The Commonwealth, 6 Harris 104; Dougherty v. Commonwealth, 19 P. F. Smith 291. In this case the question may have been asked in fact, but as it does not appear in the record, and is a matter of substance, we must treat it as not having been done. In all high felonies, and especially in cases of murder, the presiding judge should see that the record is made up properly, before the term is over.
The sentence will be reversed, in order that the case may he sent back, and an opportunity afforded to the prisoner to plead in bar of it, but this error will not reverse the trial and conviction. Jewell v. Commonwealth, 10 Harris 94, 102.
[192] The sentence of the Court of Oyer and Terminer in this case is reversed, and it is ordered that the record be remitted to said court, with an-order of procedendo, to proceed and sentence the prisoner afresh, in due order and process of law.