Commonwealth v. Payne , 242 Pa. 394 ( 1913 )

Opinion by

Me. Justice Beown,

The appellant comes here with three complaints. The first is of the refusal of the court below to strike from the indictment the record of the defendant’s conviction of rape. It contained two counts: one for murder, and the other for voluntary manslaughter. It further charged that the prisoner had been convicted of voluntary manslaughter in 1891 and of rape in 1895. The Commonwealth could not have anticipated with certainty a verdict of guilty of murder of the first degree, and the manifest purpose of inserting in the indictment a count for voluntary manslaughter, though not necessary, was to bring the prisoner, if convicted of that offense, within the provisions of the 182d Section of the Act of March 31, 1860, which is as follows: “If any person who has been convicted of any offense, other than murder of the second degree, for which the punishment prescribed by this code is imprisonment by separate or solitary confinement at labor, shall, after such conviction, be guilty of a similar offense, or of any offense for which such punishment is directed, he shall in either case, upon conviction, be sentenced to undergo an imprisonment, and be kept at labor not exceeding double the whole period of time which may, by the penal laws of this Commonwealth, be prescribed for the crime of which he is convicted.” If this provision is to be invoked, the previous conviction of the accused must be averred in the indictment, and the record of his conviction must be offered in evidence in support of that averment. In this way alone can the provisions of the statute be carried into effect: Rauch v. Commonwealth, 78 Pa. 490; Kane v. Commonwealth, 109 Pa. 541; Halderman’s Case, 53 Sup. Ct. 554. Counsel for the prisoner do not contend that it was error to refuse to strike out the averment as to his conviction of voluntary manslaughter, but complain of the refusal to strike out the averment of the conviction of rape in 1895. In making this complaint it is insisted that under the words of the 182d section of the Penal Code of 1860, only one conviction of a former offense can be averred and proved, and that when two prior convictions are set forth in the indictment the reading of it before the full panel of jurors upon the arraignment of the prisoner may prejudice him in the minds of those ¡subsequently selected .to try him. This latter contention is without merit in the present case in view of the following instruction to the jury: “Now, so far as those convictions and the penalties imposed in those cases are concerned, they are not to operate against this defendant in the trial of this case. He is being tried by you on the offense alleged to have been committed by Mm on the 26th day of January, 1913, and the fact that he may have committed offenses in 1891 and 1895, whether of this character or of some other character, should not operate against him by bringing about a conviction in this case. So far as this case is concerned, you are to try it on the testimony here submitted and on the facts as you may determine them from the testimony, regardless of the fact of these previous convictions, the record of which was offered in evidence, read and referred to in the bill of indictment. That was a formal matter and under the law was a' matter for the information of the court in connection with the provisions of a certain act of assembly with which the jury has nothing to do, and as we have said, mention of those previous convictions is not to operate in your minds against the defendant in this case.” The averments complained of were for the information of the court alone in the event of the prisoner’s conviction of voluntary manslaughter. At the time the motion was made to strike out, his identity had not been established,, and, if upon the trial the Commonwealth had not been ablento show that he was the person averred.to have been convicted of voluntary manslaughter, it would not have been permitted to show the conviction of rape with that averment stricken from the indictment: Kane v. Commonwealth, supra. Under a correct ruling of the court below the Commonwealth was not permitted to prove the second conviction after having shown the first with an admission by the prisoner that he was the defendant in that conviction, and, if he had been convicted of voluntary manslaughter on this indictment, the case would have come within the express words of the statute.

Appellant’s second complaint is that the Commonwealth was permitted to ask one of the witnesses for the defense on cross-examination whether he had been shortly before convicted of robbery and of assault and battery with intent to rob. The credibility of that witness as well as that of all the others called by the defendant was for the jury, and the question was properly allowed. It was not necessary for the Commonwealth to produce and offer in evidence the record of his prior conviction: Com. v. Racco, 225 Pa. 113.

The remaining complaint is of the inadequacy of the instructions on the law of self-defense and of the failure of the trial judge to refer in his charge to the testimony of certain witnesses called to show the vicious and quarrelsome disposition of the deceased and threats made by him against the prisoner. Standing alone the charge could fairly be regarded as inadequate upon the law of self-defense; but reading it in connection with the unqualified affirmance of the prisoner’s first, second and third points, carefully and elaborately prepared by his counsel, it is not to be so regarded. By those points the court was asked to instruct the jury that if they found from the testimony that the prisoner had killed the deceased under the circumstances set forth in the points, he acted in self-defense, and should be acquitted. These points and the answers to them are part of the charge, and we must so consider them upon complaint of its inadequacy. When they are so considered the complaint of the inadequacy of the instructions as to the law of self-defense is groundless. While it is the duty of a trial judge in a capital case to fully instruct the jury upon the law applicable to the facts without any special request on the part of the defendant that he do-so; he is not required to recapitulate the evidence or refer to it in detail. Hotv detailed a reference to it ought to be is largely in his discretion: Com. v. Caraffa, 222 Pa. 297. Though the trial judge did not, in the present case, specifically refer to the testimony as to the threats alleged to have been made by the deceased, thé jury were instructed by his answer to the prisoner’s fifth point that if he struck the blow which resulted in death by reason of terror caused by his knowledge of the threats which the deceased had made against him, and of the attitude of Thomas during the scuffle, there could be no conviction of murder. The attention of the jury was thus drawn to the testimony as to the threats With instructions as to what effect was to be given them in fixing the degree of the prisoner’s guilt; and, in the absence of any request to the trial judge to direct the attention of the jury to those portions of the testimony on the part of the defense appearing in the sixth, seventh, eighth, ninth, tenth and eleventh assignments, his failure to do so was not error.

After due consideration of all the assignments we find nothing in any one of them calling for a reversal of the judgment. It is, therefore, affirmed and the record remitted for the purpose; of execution.