Weston v. Commonwealth ( 1886 )

Mr. Justice Green

delivered the opinion of the court, January 4, 1886.

There is no merit whatever in the first assignment of error. .The modification of the defendant’s eighth point covered by the second assignment was entirely correct. The point limited .prisoner’s responsibility to a direct aiding or assisting in the killing. The answer merely modified this by extending the responsibility to aiding or abetting in the common purpose of all, providing the killing was in pursuance of, or an incidental probable consequence of such purpose. We see" no error in this. If there Avas a common purpose to kill and the prisoner Avas present aiding or abetting in that purpose, of course he Avas liable for the act of one of the party he was aiding in carrying out that purpose. Equally true is it that he Avould be so liable if the killing Avas a probable consequence of the common purpose. Thus it is said in 1 Whart. Cr. Law, § 220 (8th ed.) : “ It is not’ necessary that the crime should be part of the original design; it is enough if it be one of the incidental probable consequences of the execution of that design and should appear at the moment to one of the participants to be expedient for the common purpose. Thus where A. and B. go out for the purpose of robbing C., and A. in pursuance of the plan, and in execution of the robbery kills C., B. is guilty of murder.”

The intent stated in the point, to hold possession by a show of arms for intimidation only, was itself unlawful and draws to itself the consequences of acts done in carrying it into execution.

The fault of the first clause of the defendant’s ninth point is that it does not cover all the circumstances which are essential to the validity of its conclusion. The conclusion is absolute that there would be no responsibility of the defendant, a confederate, although the slayer intended his act. The only-premise given for the conclusion is that the defendant intended to hold possession by lawful means, and did not intend to use a deadly weapon upon any who might attempt to dispossess him. But the point includes as part of the intent the determination to hold possession by using as much force as was necessary, and the conclusion ignores the effect of an actual irse of arms by the Avhole party including the defendant in holding possession, and therefore omits a circumstance Avhich may be quite material to its validity.

It was doubtless for reasons like this that the learned Judge said the first clause was ambiguous. The last clause of the point is not technically sound, and justifies the remark of the Court. The fourth assignment is not pressed! As to the fifth, it may be said that it is put rather too strongly for an absolute affirmance, but the Court practically affirmed it by referring it to the jury as an expression of views more proper for them than for the Court. The point related to the effect to be attached to loose declarations. This of course was for the jury to consider so far as the application of the doctrine was concerned, and it was turned over to them without denial or qualification. Properly it should have been somewhat qualified, but the omission to express the qualification is no ground for reversal when it gave the defendant the full equivalent of an affirmance. The sixth assignment is disposed of by the answer to the second. We see no error in the part of the charge covered by this assignment. Surely if the killing was an incidental and a probable consequence of the execution of the common purpose, and the defendant was pai'ticipating in the acts, which were being done in the execution of that purpose, he was responsible. Whether he was so participating was carefully left to the jury.

The seventh to twelfth assignments,, both inclusive, cover the rejection of the defendant’s challenges to six of the jurors. A careful examination of the testimony of the jurors convinces hs that the challenges were properly overruled under the decision in the case of Allison v. Commonwealth, 3 Out. 17.

All of the jurors denied that they had formed or expressed any fixed opinion as to the guilt or innocence of the defendant. None of them had read or heard the testimony taken on a former trial, because there had been no former trial of this defendant. There had been a preliminary hearing as to the facts-of the occurrence which resulted in the death of Hay-maker, and there had been a trial of one of - the persons implicated named Bowser. Some of the jurors had read the newspaper reports of the hearing, and some had read parts of the testimony as published in the newspapers, taken on the trial of Bowser. No one said he had read the whole of the testimony actually delivered on the Bowser trial. Even if a reading of the whole of the testimony in the Bowser case would have disqualified the juror, the evidence does not come up to that test, and therefore was not sufficient as a cause of challenge. But it is very evident that Bowser’s case and the defendant’s case are not the same. One might be guilty and the other innocent. The testimony in Bowser’s case might disclose little or nothing of the facts necessary to convict Weston, and therefore an opinion that Bowser was guilty upon the evidence given to implicate him, would not at all necessitate an opinion as to Weston’s guilt. As every one of the jurors denied the formation of any fixed opinion as to Weston’s guilt, there was nothing to disqualify any of them under our-decision in Allison’s case. These assignments are not sustained.

As to the thirteenth assignment, it is only necessary to say that if counsel had advised the defendant that he might with impunity do every one of the acts necessary to make out his ■guilt, the fact of such advice would have been no defence whatever to him. Of course, if he was advised'that he miglit do some of these acts without criminality, it could have no highér effect. Whatever legal rights the defendant might have as to property claimed by him, he could set up and avail himself of, whether he had been advised of them or not. The giving of the advice neither increases nor diminishes his criminality in any degree, and therefore it was irrelevant.

The judgment is affirmed, and it is ordered that the record be remitted to the Court of Oyer and Terminer of Allegheny County for the purpose of execution.