Commonwealth v. Silcox , 161 Pa. 484 ( 1894 )

Opinion .by

Mr. Justice McCollum,

We have carefully read and considered the evidence in the case, the instructions to the jury, the several specifications of error, the argument of the learned counsel for the appellant and the reply of the learned district attorney. All the specifications except the first and twelfth allege error in the instructions. The first specification complains that the record prior to the amendment of February 17,1894, did not show the presence of the defendant at every stage of the proceedings which resulted in his conviction. That he was present during the trial and when the sentence was pronounced, and that full opportunity for the exercise of all his rights in relation to both was accorded to him, is not denied. The^specification therefore rests on the common law doctrine that in capital cases the record must show affirmatively that the prisoner was present at every stage of- the proceedings against him. The contention of the defendant based thereon is that although he was actually present he is entitled to a new trial because the clerk neglected to note his presence on the record. In the light of the undisputed facts there is no real merit in this contention; it is purety technical and it ought not to prevail unless the amendment which made the record conform to the fact was unauthorized. We think the amendment was clearly within and a proper exercise of the power of the court. It simply supplied a clerical omission and placed the record in this particular in harmony with the fact. It excluded the possibility of an inference from the record opposed to the truth of the case, but it did not deprive the defendant of any substantial right. What right had he to require that a defect in the record arising from an oversight of the clerk in keeping it and which left room for an inference hostile to the undisputed facts, should be perpetuated for his benefit? He neither lost nor acquired anything by the defect which prevented the correction of it in accordance with these facts. There was nothing in the nature or character of the defect or in the circumstances of the case which placed it beyond the power of amendment. This power was. not taken away or impaired by the appeal to this court. Dougherty v. Commonwealth, 69 Pa. 286 ; Brown v. Commonwealth, 78 Pa. 122.

The twelfth specification alleges error in the admission of the dying declarations of the deceased. These declarations were objected to on the ground that the commonwealth had not laid sufficient ground for introducing them. It appeared t-o the court from the testimony of the witness to-whom they were made that the deceased “ was in his right mind,” and conscious that his death was imminent at the time he made them. It would have been more satisfactory perhaps if stronger and clearer evidence of the mental capacity of the deceased had preceded their admission. But no suggestion came from the defendant’s counsel that the deceased was not “in his right mind” when the declarations were made, and as there was a prima facie showing that they were competent, we cannot convict the learned court of error in admitting them.

The eighth specification is founded upon the refusal of the court to affirm without qualification the defendant’s first point, which was as follows: “If the jury believe the testimony of Mrs. Bedow, of Nelson Hollister, Alexander Zendall, Robert Reese, William Shultze, Henry Magill and Lafayette Van Gilder, that the deceased made declarations, at the time of the shooting and subsequently thereto, that the shooting was accidental, and contradictory of his dying declarations, such declarations are to be taken into consideration by the jury, and if true then there should be an acquittal.” In answer to this point the learned judge said: “We affirm the point so far— their testimony to such declarations should be carefully considered. But the further part of the point proceeding thus, ‘ and if true there should be an acquittal,’ we cannot affirm.” He then proceeded to explain to the jury why it could not be affirmed, and from his explanation it is obvious that he misapprehended the point. The declarations referred to were that the shooting was accidental, and he was asked to say that if they were true then there should be an acquittal. If the declarations were true the shooting was accidental, and if it was, we cannot conceive upon rvhat theory of or evidence in the case there could be a conviction of murder or voluntary manslaughter. The answer to the point in question amounted to an instruction that, although the jury were satisfied from the evidence in the case that the shooting was accidental, they might convict the defendant of the cz'ime charged in the indictment. We are clearly satisfied that the instruction complained of in the eighth specification was erroneous and prejudicial to the defendant.

The second, third, fourth, ninth, tenth and eleventh specifications need not be separately considered or discussed in this opinion. We discover nothing in them which calls for a reversal of the judgment. In some respects at least the rights of the commonwealth and the accused were mutual; they were jointly and severally entitled to have a fair trial of the issue between them, and a decision of it upon the evidence elicited on such trial. A denial of this right is a wrong done to the party deprived of it. A verdict which disregards the evidence and is founded upon the prejudices or the sympathies of the jurors is such a wrong, and we should not be astute to discover defects in an instruction obviously intended to prevent the perpetration of it.

We think the criticism of the instructions in relation to murder in the second degree and to voluntary manslaughter is unwarranted. They were fairly adapted to the evidence in the .case, and they furnished no basis for the contention that they .cast upon the defendant the burden of establishing his innoI, cence.

We az'e not prepared to say that the defendant was entitled ,to an acquittal if the jury disbelieved Thomas Macaffrey’s testimony. It must be conceded however that the loss of this testimony from any cause would have materially impaired the .■■strength of the commonwealth’s case. It was the only support -of the alleged dying declarations of the deceased and of the .claim of the commonwealth that it was shown by the defendant’s .own statement that he purposely fired the fatal shot. Still, the .case was for the juzy upon all the evidence, and we are not sure •■that the particular evidence referred to was indispensable to a .conviction.

The fifth, sixth and sevezith specifications may be considered ■together. They are based on that portion of the charge which was devoted to the facts of the case. In support of them it is urged that the review of the evidence was inadequate, inaccurate and unfair. We do not discover in this review any positive misstatement of the evidence, but we do think that while the learned judge gave due prominence to the evidence on the part of the commonwealth, he inadvertently failed to bring to the attention of the jury, as he should have done, the testimony relied on by the defendant to establish his claim that the occurrence under investigation was purely accidental. It showed the existence of intimate and friendly relations between the deceased and the accused, and their declarations and conduct immediately after the shooting, which tended to negative an inference of ill will or a quarrel between them at the time of it. These were important matters which should have been clearly and distinctly presented in the charge, so that the jury in their deliberations might give to them such consideration and weight as they deserved. But they were not so presented. At no place in the charge was there anything more than a perfunctory reference to them, and then it was obscured by a prominent presentation in immediate connection therewith of some part of the commonwealth’s testimony. In other words, the manner and connection in which the reference was made was quite likely to lead the jury to infer that the defendant’s evidence was comparatively unimportant in the decision of the issue they were sworn to try.

In accordance with the foregoing views we sustain the fifth, sixth, seventh and eighth specifications of error and overrule the remaining specifications.

Judgment reversed and venire facias de novo awarded.