Pistorius v. Commonwealth , 1877 Pa. LEXIS 142 ( 1877 )

Mr. Justice Sterrett

delivered the opinion of the court,

The indictment charged the plaintiff in error and his brother jointly with the murder of Isaac Jaquette. Separate trials were awarded, and the case against Blasius Pistorius having been taken up first, the wife of the brother was called as a witness in his behalf and was objected to by the Commonwealth. The objection was sustained and the exclusion of the witness is complained of.

During the argument béfore us, it was stated by counsel for the plaintiff in error that John Pistorius, the husband of the witness, had been tried and acquitted, since the writ of error in this case was taken. In view of this fact, and inasmuch as the judgment is reversed on another ground, the question presented by this assignment of error has become immaterial, and it is therefore unnecessary to consider it. The trial and acquittal of the husband has removed all objection to the competency of the wife.

The second, third and fourth assignments relate to the explanations or qualifications which the court added to their affirmance of the third, fourth and sixth points, submitted by one of the prisoner’s counsel.

These points refer to the same general Subject and are each based upon a hypothetical state of facts, which, if found by the jury to be true, would, it is claimed, relieve the prisoner from a conviction of murder of the first degree; and the complaint is, that while each of them was affirmed, an explanation was added which had a tendency to confuse arid perhaps mislead the jury; and thus, to some extent, deprived the defendant of the benefit of the affirmance.

The instruction asked in the sixth point was : “ If the jury find that the deceased approached the defendant in a threatening manner, and the defendant had a reasonable belief of bodily harm, although mistaken, he cannot be convicted of murder of the first degree.” The answer of the learned judge was: “ This is true, if you believe the prisoner acted on that apprehension ;” and, in the same sentence he added, “ but it is not true, if you find beyond all reasonable doubt that he fired with a wilful, deliberate and premeditated intent to take life.”

The point as presented was incomplete and might have been refused, but the court thought proper to affirm it with the qualification contained in the first clause of the answer, and said to the jury that it was correct if they found that the prisoner acted on the apprehension of bodily harm. There can be no reason to complain of this qualification, which in itself was quite proper. The facts, then, necessary to be found by the jury in order to sustain the proposition, as qualified and affirmed by the court, were that the deceased approached the prisoner in a threatening manner — that the latter had a reasonable belief that he was in danger of bodily harm, and that acting on that belief and apprehension of danger he fired the fatal shot. If they found these facts to be true, the effect of the instruction would be to relieve the defendant from a conviction of murder of the first degree; but, what was added by the court, in saying it was not true if “ he fired with a wilful, deliberate and premeditated intent to take life,” was liable to be misunderstood by the jury. They might understand it to mean that although they found all the facts embodied in the proposition as affirmed by the court, still if they found, in addition thereto, that the defendant intended to kill, they should convict him of murder of the first degree; or, at least would be justifiable in doing so. The proposition, as affirmed, presented a state of facts which, if ascertained to be true by the jury, excluded a conviction of murder of the first degree, but left them free to find a lower grade of homicide, if they thought that, under the circumstances as they really were, or as they reasonably appeared to the prisoner to be, there was no occasion to take life in order to save his own, or to avert great bodily harm ; but, being told in the same connection that the proposition was not true if he intended to kill, the jury might think, if they found this intention, that it was their duty to convict of murder of the first degree.

The answers to the third and fourth points are not entirely free from a similar objection.

The idea intended to be conveyed by the learned judge, in all these was no doubt but to the manner in which it was expressed in the hurry of trial, the jury, in our judgment, may have been misled into thb belief that if the prisoner intended to kill, he should be convicted of murder of the first degree, notwithstanding they were satisfied that he was assaulted and fired “ under apprehension of bodily harm,” or had a reasonable belief of danger “founded on the manner, gestures and appearance of the deceased.” If he was assaulted and was actually in danger of great bodily harm, or if it reasonably appeared to him that he was, and the danger, either real or apparent, was so great that it could not be averted without taking the life of his assailant, he would be excusable, under the law of self-defence, in doing so, in order to save his own life or avert great bodily harm. But, under the state of facts embodied in the points, the entire acquittal of the defendant was not asked. It was not contended that he was wholly excusable on the ground of self-defence. It was simply claimed that if the facts stated in the points were found to be true, he should not be convicted of murder of the first degree, leaving it to the jury under the instruction of the court to find a lower degree of homicide if they thought the evidence justified it.

In what has been said, we do not wish to be understood as intimating that, in answering points, the court should simply affirm or negative them. Hypothetical propositions are sometimes presented to the court, quite correct in themselves, but so artfully drawn that a naked affirmance might not enable the jury to comprehend their bearing. Others again a^re not strictly correct and require qualification. In such cases it is the undoubted right and frequently the duty of the court, in answering, to give such explanations or qualifications as may be necessary to enable the jury to understand them. Sometimes this may be best done by presenting to the jury an alternative proposition, or suggesting to them, in connection with the answer,'another or different theory or state of facts arising out of the evidence, and instructing them as to the lawr and their duty, in case they find them to be true.

. The remaining assignments of error are not sustained, and there is nothing in any of them requiring special notice.

With the exception of the answers to the points already noticed, the learned, judge presented the case very clearly and fairly in his charge to the jury; but, for the reasons already given, we are of opinion that the case should he sent back for a new trial.

The judgment of the Court of Oyer and Terminer is reversed and a venire facias de novo awarded; and it is ordered that the record be remitted to said court for another trial.