Commonwealth v. March , 248 Pa. 434 ( 1915 )

Opinion by

Mr. Justice Elkin,

This record is barren of a single fact which might be deemed to be' an extenuating circumstance in favor of the defendant who was convicted of the killing. The murder was wilful, deliberate and premeditated. It was not only premeditated but the methods employed in the commission of the crime were barbarous and brutal. All of the ingredients of murder of the first degree are present in this case. Back of the crime there were both motive and malice — the perpetration of a robbery and the jealousy of a low animal nature. The evidence against appellant was overwhelming and his conviction necessarily followed. He had a fair and impartial trial according to the law of the land. No constitutional right was .denied him and he was afforded every protection which the law gives one indicted for high crimes and misdemeanors. He was tried by a jury of the vicinage and defended by counsel who vainly endeavored to protect his life and liberty. He was convicted of murder of the first degree because under the evidence no- other verdict was possible without a capricious disregard of the facts and circumstances. We are now asked to set aside that verdict, and the judgment entered thereon, upon technical and to some extent frivolous grounds. This we do not feel at liberty to do. The assignments of error have no substantial merit, and while they have all been examined with care, many of them are not in proper form to be considered here, and none of them are sufficient to warrant a reversal.

Change of venue is a matter largely in the discretion of the trial court, and when the application is refused, an appellate court-will not interfere unless under the facts that discretion was abused. In the present case there was simply a petition filed and an argument by council asking for a change of venue. No facts were proved to show the court that the accused could not have a fair and impartial trial in the jurisdiction where the crime was committed. There was nothing in the present case to show the existence of such passion or prejudice as would pr,event the jury from rendering a true verdict under the evidence. This being so the petition asking for a change of venue was properly refused : Com. v. Buccieri, 153 Pa. 535. Nor is there any merit in the contention that the court erred in permitting the defendant to be tried upon one indictment when another indictment had been previously presented to a grand jury. This question was squarely ruled against the contention of appellant in Com. v. Clemmer, 190 Pa. 202. The same may be said as to the assignment which relates to the refusal of the trial court to sustain, challenges of certain jurors for cause. It has been said over and over again that nothing short of palpable error in this regard will justify a reversal: Com. v. Church, 17 Pa. Superior Ct. 39; Com. v. Roddy, 184 Pa. 274-287.

Complaint is also made that certain witnesses identified Annie Sweeney, the wife of defendant, in the court room, and it is argued that this was improper. As the record is here presented the merits of this contention cannot be discussed. It certainly did the defendant no substantial harm, and his counsel must have been so impressed because he made no objection when the questions were asked and took no exception to the ruling of the trial judge in this respect. This assignment must therefore be disregarded: Com. v. VanHorn, 188 Pa. 143.

Under the ninth assignment complaint is made that the testimony of Mary Louise Barber was improperly admitted upon the ground that she was the wife of defendant. The answer to this contention is that the lawful wife of defendant was living and that Mary Louise Barber was not at the time of the trial nor at any other time his wife. Indeed, the learned trial judge might very properly have decided as a matter of law that Mary Louise Barber was not the lawful wife of defendant, and if he had so decided, there would have been no doubt about her right to testify. He did not do so but left this to the jury as a question of fact, and thus gave defendant the benefit of whatever doubt there might have been in the minds of the jurors as to his marriage relation. This assignment is also without merit.

Equally lacking in merit is the contention that it was error to amend the caption of the case as it appeared upon the record when the appeal was taken. The record itself shows that every step taken in the presentation and trial of the defendant was in the Court of Oyer and Terminer. By a clerical error the docket entries showed a certification from the Oyer and Terminer to the Quarter Sessions. That this was a clerical error is not denied and the learned trial judge permitted the record to be amended in accordance with the facts. That this can be done was expressly ruled in Brown v. Commonwealth, 78 Pa. 122.

We can add nothing of value in disposing of this appeal by discussing the numerous assignments of error not already referred to. They have no substantial merit under the facts of the case at bar, and certainly do' not furnish the slightest foundation upon which to base a reversal.

Judgment affirmed, and record remitted to the court below for the purpose of execution.