Goersen v. Commonwealth , 1884 Pa. LEXIS 220 ( 1884 )

Chief Justice Mercur

delivered the opinion of the court,

We have given to this case that careful examination and consideration, which its magnitude demands. The controlling questions which arise were presented when the case was here before, (3 Out., 388).

As we adhere to our rulings then made, and as the evidence is substantially the same in the latter trial, as in the former, we deem it unnecessary to discuss many of the assignments separately or at length.

The alleged errors covered by the first four assignments were properly argued together by the counsel for the prisoner. They relate to the admission of evidence and the effect thereof.

It was said in the former case, a defendant cannot be convicted of the offence charged merely because he has committed another offence either of a similar or dissimilar kind: nor can such evidence be received to impeach his general character nor merely to prove a disposition to commit crime.

We then proceeded to state some of the circumstances under which evidence may be given of the commission of another offence by the defendant. The court followed that ruling. It was justly admissible to prove motive, to show guilty knowledge and purpose and to rebut any inference of mistake' and to connect the other offence with the one charged as part of the same object to be attained. There was therefore no error in admitting the evidence; nor was there any in refusing to strike out the testimony of Budd.

The evidence having been received the question is, was .it improperly presented or commented on by the court ? The answer is, that it was so well presented that no error is assigned to any portion of the charge; nor is there an allegation of inadequacy. The counsel for the prisoner did not even present the charge for our inspection. The other side however has done so. It contains a full, clear and correct review and presentation of the evidence, as well as of the grounds of defence, and the law applicable to the case.

The fifth assignment is to the rejection of evidence offered. So much, of the evidence contained in the offer, as tended to rebut the theory of the commonwealth, , as to the question of motive, was admitted. The declaration of the prisoner made afterwards was no part of the res gestee, and was properly excluded when offered in his favor.

The purpose in asking the question of Honig, referred to in the sixth assignment, is not shown by the record. The object was to ascertain if he had not made a statement inconsistent with the general tenor and effect of his evidence. The question therefore on cross-examination was entirely proper. It is true two witnesses called on the part of the Commonwealth were afterwards asked questions for the purpose of contradicting Honig; but no error is assigned to allowing the questions nor to the answers.

The statement in the seventh assignment, of the offer of evidence, does not agree with the offer shown by the record. The record says “ the defence offers to prove that on a former occasion some ten years previously the witness had seen the deceased Lizzie Goersen then Lizzie Souder taking arsenic ; that Lizzie Souder told her it was arsenic and also told her that she had to take it for her health.” The court said it would admit the offer if it was to be followed by other evidence bringing the habit down to any reasonable period before the death of Mrs. Goersen; but as made, it was too remote. N o offer was made to prove any such act or habit within the ten years preceding her death. The evidence offered was clearly inadmissible.

There is no merit in the eighth assignment. The whole character and tendency of the evidence was to prove a wilful deliberate and premeditated killing. All eases of murder thus perpetrated, or by means of poison, with like deliberation and premeditation, the Act of Assembly declares .shall be deemed murder of the first degree.

No such separation of the jury was shown as to establish any misconduct or to deprive the prisoner of any right guaranteed to him by the Constitution. Conceding the attendance of the physician on the sick juror without the knowledge and order of the court was wrong; further conceding that a presumption thereby arose which the Commonwealth must remove; yet it is clearly proved, without contradiction and beyond all doubt, that nothing was said or done which had the slightest tendency to prejudice the rights of the prisoner.

The case was carefully and well tried. There was evidence of all the ingredients necessary to constitute murder in the first degree. Its truthfulness was for the jury. We see no reason to question the correctness of the verdict nor of the judgment entered thereon'.

The judgment is affirmed; and it is ordered that the record bé remitted to said Court of Oyer and Terminer for the purpose of carrying the sentence into execution.