Commonwealth v. Eagan , 190 Pa. 10 ( 1899 )

Opinion by

Mr. Justice Mitchell,

That appellant was justly convicted does not admit of question. There is no room for doubt of his guilt or of its degree. But counsel, with excess of zeal not commendable, has raised many questions on the regularity of the proceedings, most of them merely technical and immaterial, and all of them untenable.

The first and second assignments, to the refusal to quash the array of grand jurors and the indictment, and the third, to the refusal to order the commonwealth to furnish a bill of particulars, are sufficiently answered by the learned judge below in making the refusals. If the former needed any authority beyond common sense it would be found in Com. v. Freeman, 166 Pa. 332.

The next assignment is to the overruling of the prisoner’s challenge for cause to juror Ives. In answer to questions whether he had read the accounts of the murder and the arrest of the prisoner, had heard the subject talked over and had formed any fixed opinion as to the prisoner’s guilt or innocence, the juror answerd “ Yes ” and on further question whether, notwithstanding all that he had read and heard, he could go into the jury box and render a verdict impartially upon the evidence alone as given in the court room, uninfluenced by any opinion or impression he had formed, he answered, “ I think I could.” This answer rendered the juror competent, unless from his manner, voice, bearing, etc., the judge was led to doubt the juror’s own confidence in his ability to be impartial. In this day of wide spread education and habit of reading, and of the general dissemination of news by the press, it will not do to exclude intelligent and competent men from the jury box because of impressions or even of opinions formed from reading accounts in the newspapers. The established test is whether or not the juror can throw aside his impression or opinion and render an impartial verdict on the evidence alone. That question the juror alone can answer, and the weight of his answer is not to be determined exclusively by his words as they appear in print in the record, but by his words, manner and bearing, as to which a fair measure of discretion must he allowed to. the court below which had the juror before it. It is argued that the present .case fails to meet the test because the juror spoke of his opinion as “fixed ” and because his answer was not positive, but only “I think I could.” As to the “fixed” character of the opinion, the objection is ruled by Curley v. Com., 84 Pa. 151, where it was held that, notwithstanding the juror’s use of the word “ fixed ” in regard to his opinion, he was competent if he declared he could disregard it and be governed only by the evidence. The juror’s answer in the present case, “ I think I could,” may be construed as implying a doubt on his own part, but not necessarily so. As already said, the construction of the words is largely influenced by the voice, manner and bearing of the speaker. If the latter indicate confidence of his ability and intention to do his duty, he has met the test, notwithstanding the apparent hesitancy of his words. On this subject a reasonable discretion must be allowed to the judge who has the juror before him. In this instance the juror’s answers all through indicate a man of intelligence and honest frankness, willing to do his duty and believing himself able. Even if this were less . clear than it is we could not say the court was in error in baking that view.

The .objections to the admission of the prisoner’s confessions, and the charge in relation to them may be dismissed briefly. One of them was a statement written out by a newspaper .reporter and signed by the prisoner and the other was a conversation with the district attorney, taken down by his stenographer. It was affirmatively testified to by four witnesses that both statements were entirely voluntary, and it clearly appears by the stenographer’s notes that the district attorney before asking any questions at all cautioned the prisoner that his answers must come of his own free will, and could be used against him. There was no denial by the prisoner or by any witness in. his behalf. Of course, such statements were admitted by the judge. The fact that the conversation was with the district attorney, and in the jail where the prisoner was confined, was a good reason why the circumstances should be examined, but the mere fact that it was with the officer of the commonwealth did not make it incompetent, in the absence of all evidence that his official .position was misused by inducements or threats or duress. It is the manner and circumstances under which a confession is procured, not the person to whom it is made, that determines its admissibility. ' The motive of the confession is plain. “ Conscience doth make cowards of us all.” Two confederates, starting out to commit burglary end in doing murder, and being-arrested, each in his cowardly haste to throw the burden of the actual killing on the other, makes a confession that incriminates himself.

The elements of murder of the first degree were clearly shown. The confession to Munger states that after they had beaten and tied Pepper in the barn, and had gone out, they “heard him gi’oan, and Shew went in and hit him again. Shew went back in the barn three times in all.” ' This, in connection with the nature of the injuries and the other circumstances, was amply sufficient to justify the jury in finding a wilful and premeditated killing, irrespective of the other question as to robbery or burglary.

The remaining assignments, which may be grouped together, raise the only serious question in the case, whether there was sufficient evidence of an attempt, as distinguished from a mere intent, to commit robbery or burglary, or both. The outline of the case as made by the evidence is clear. The two confederates went to the farm of Pepper, hid until night, and watched the house with the intent to break in after the old people had gone to bed, and take their money. While so watching they saw Pepper come out of the house with a lantern and go to the barn across the road, and the confederate suggested that it would be better to overcome him there. Accordingly, they attacked him in the barn, inflicting injuries of which he died, came out without taking the money that was subsequently found to have been on his person, and wont across the road towards the house, getting inside the yard, when they were frightened by an approaching team and burned away. It is beyond dispute that there was an intent to commit burglary, but that it was not carried into complete execution. The question is did it stop at the mere intent, or did it amount to an attempt.

An attempt, in general, is an overt act done in pursuance of an intent to do a specific thing, tending to the end but falling short of complete accomplishment of it. In law, the definition must have this further qualification, that the overt act must be (sufficiently proximate to the intended crime to form one of the natural series of acts which the intent requires for its full execution. So long as the acts are confined to preparation only, and can be abandoned before any transgression of the law or of others’ rights, they are within the sphere of intent and do not amount to attempts. Thus the acts of the prisoner in going to Pepper’s place and watching his house, and even of preparing the rope to tie him, while undoubtedly done in pursuance of the intent, did not go beyond mere preparation, and had the intent been abandoned at this point, an indictment for an attempt to commit robbery or burglary could not have been sus- , tained. But the moment a blow was struck on Pepper the first I step of the actual crime had been taken, and the intent was | merged in the attempt. Subsequent abandonment might prevent the completion of the crime, but could not save from the consequences of acts done in the attempt.

Turning now to the evidence, it is undisputed that Pepper was attacked, beaten, gagged and bound in execution of the' intent to get his money. The fact that the money on his person was not actually taken is not .material on the question of attempt. If it had been taken the crime of robbery would have, been complete, and the attempt would have been merged in it, but it does not appear that the prisoner knew that Pepper’s money was upon him, and at any rate it was not taken. The crime of robbery therefore was not committed, but that it was attempted was a proper, and indeed unavoidable, inference from the acts done, and the judge was fully justified in submitting the evidence to the jury on that question.

The same result must be reached as to burglary. As already said the original intent was to break into the house after its ocr cupants were asleep and take their money. Preparations were made, the house approached and watched, with this intent in view. When Pepper came out with his lantern the prisoner and his confederate made a change, not in their intent, but in their plan of executing it; they attacked and beat him to disable him from resisting their entry of the house; after they had so disabled him they started for the house, crossing the road and entering the yard, still in pursuance of their design to get the money supposed to be in the house; and only abandoned it when frightened by an approaching team. The transaction had gone beyond intent and preparation, and had passed into acts which amounted to an attempt at some crime. The crime was for the jury to determine, and that it might be burglary, was so fair an inference that the prisoner’s counsel himself has unwittingly drawn it in his twenty-third point, “ even though the intention of the prisoner was to fasten, tie and maim the deceased so as to prevent him from leaving the barn, so as to enable the prisoner to go to the dwelling house of the deceased to commit a felony therein, it would not constitute the crime of robbery or attempted robbery,” etc. Incidit in Scyllam evitare Charybdin. The evidence showed acts done in execution of an admitted intent, sufficiently proximate to justify the judge in submitting to the jury the question of an attempt at burglary, as well as robbery. The distinction between an intent and attempt was stated clearly to the jury, and the prisoner’s rights carefully guarded. Throughout the charge there is no trace of. the heat or passion or prejudice which such a crime so strongly tends to raise, but the ease was calmly and impartially presented, and we find no error in it.

The judgment is affirmed and the record remitted for purpose of execution according to law.