Commonwealth v. Bezek ( 1895 )

Opinion by

Mr. Justice McCollum,

Frank Berchine, otherwise known as Frank Bezek, is under sentence of death for the murder of Maria Kerzek at Olyphant, Lackawanna county, on the 9th of October last, and the record of his trial and conviction is before us for review. It was his right to have an impartial trial in accordance with law, and if that was denied to him it is our duty on his appeal to afford him an opportunity for it by reversing the judgment. We were induced by his poverty to facilitate the review he sought by accepting the official stenographer’s type-written copy of the testimony in lieu of its presentation in the paper-books as required by our rules. We have carefully examined and studied the testimony so furnished to us, and while we do not deem it necessary nor propose to analyze or discuss it in this opinion we unhesitatingly say that his conviction of murder of the first degree was fully warranted by it. It plainly shows that the homicide was a consequence of the refusal of the deceased to become his wife. Whether it was the result of an attempt by him to commit suicide, of a premeditated purpose to murder her, or of the unconscious act of a madman, were questions for the jury upon the evidence under proper instructions from the court.

There are sixteen specifications of error filed in the case, and we will consider them in their order. It is conceded by the learned counsel for the defendant that there is nothing upon the record on which to base the first specification, and this concession, confirmed by an inspection of the record, is, technically speaking, a sufficient answer to it. Nevertheless, in favorem vitas, we have considered it in the light afforded by their statement of the grounds for it and by the reply of the learnedc ounsel for the commonwealth. So considered it appears to be founded upon a denial of the defendant’s motion for a continuance of the case. As nothing short of an abuse of the discretion the trial court has in passing upon a motion of this character would justify our intervention, and q.s it does not appear that this discretion was abused in the case before us, the specification must be overruled. It is proper in this connection to add that nothing was shown in support of the motion which presented reasonable ground for believing that a postponement of the trial would result in strengthening the defense in any respect.

There is nothing in the offer which forms the subject of the second specification that raises any doubt concerning the correctness of the ruling upon it, except the portion of it which relates to the alleged confinement of the defendant in an insane asylum in Austria, and the exclusion of this appeared to us on first view as error which might authorize and perhaps call for a reversal of the judgment. The technical answer to this view is that where an offer blends irrelevant and inadmissible matters with a matter relevant and admissible, and it is made and rejected as a whole, the rejection of it is not error: Sennett v. Johnston, 9 Pa. 335, and Wharton v. Douglass, 76 Pa. 273. But in deciding the question raised by the specification we shall not take into consideration the rule supported by the cases cited. These were civil cases and if the rule stated in them is applicable to, it ought not to be summoned to sustain a ruling prejudicial to the interests of a defendant on trial for murder. The specification, however, fails to disclose the ruling immediately following the one in question, and under which the defendant was allowed to prove all material and admissible matters contained in the preceding offer, together with his acts, declarations and conduct while in Austria, and in this country, tending to show that he was insane when the homicide was committed. This ruling rendered the ruling complained of in the second specification harmless and without effect upon the defendant’s rights, even though it be conceded there was error in its exclusion of that part of the offer relating to his confinement in an asylum. Joseph Petrocious, John Karocious and Anthony Krantz who were his neighbors in Austria and whose acquaintance with him dates from the period of his childhood, testified to having seen him in a hospital at Liebaeh, five years ago, and to his acts and declarations there. That their testimony did not fully sustain the offer may be attributable to their want of knowledge or recollection of the matters to which their attention was called, but it is not chargeable to any ruling of the court.

The rulings complained of in the third and fourth specifications of error were not excepted to in the trial court and are not, under well-settled rules, reviewable here. Besides, there is nothing discoverable in either of them which can be regarded with any show of reason as prejudicial to any right or interest of the defendant. The matters to which they referred could not legitimately affect the decision of any question involved in the case.

The fifth, sixth, seventh, eighth, ninth and tenth specifications do not require elaborate discussion. It is sufficient to say of the fifth and sixth that the offer made for the purpose of contradicting Mrs. Kramer related to immaterial matter and was based on an assumption not warranted by her testimony. The instructions in regard to the effect of the defendant’s flight from the scene of the murder were, considered as a whole, unobjectionable, and so were the instructions concerning the evidence of his alleged insanity. It is not claimed that the murder of Maria Kerzek was committed by means of poison, or by lying in wait, or in the perpetration of or attempt to perpetrate any arson, rape, robbery or burglary. The jury were not required to consider a murder so perpetrated, and they were substantially so. instructed in the language of Justice Agnew in Com. v. Drum, 58 Pa. 16. We do not assent to the claim that the instruction was misleading. The defendant has no cause to complain of the answer to his eighth point. The point was misleading and not a fair or correct statement of the law applicable to the defense of insanity. It ignored the presumption of sanity and cast on the commonwealth the burden of showing by affirmative evidence, which excluded reasonable doubt, that the defendant was not insane when the homicide was committed. Insanity is an independent defense and the decisions of this court say that he who sets it up must show the existence of it by fairly preponderating evidence: Ortwein v. Com., 76 Pa. 421; Lynch v. Com., 77 Pa. 209; Brown v. Com., 78 Pa. 128; Meyers v. Com., 83 Pa. 131, and Pannell v. Com., 86 Pa. 260.

We see no error in the rulings or action complained of in the eleventh and twelfth specifications. There was direct as well as circumstantial evidence that the murder was “ willful, deliberate and premeditated,” and there was nothing said or done in relation to the jury’s request in respect to the reading of the testimony which furnishes any ground for reversal or adverse criticism.

We are unable to find in the excerpt from the charge, which is the subject of the thirteenth specification, anything that could possibly prejudice the defendant’s cause or mislead the jury.

There was no exception to the admission of Berger’s testimony but there was an exception to the denial of the motion to strike it out. The reason assigned for the motion did not accord with the facts as shown by the evidence. Cummings testified distinctly that he warned the defendant that any statement he might make concerning the murder would be used against him, and that he need not say anything about it unless-he desired to do so. The statements made by the defendant appear to have been voluntary and we cannot say they were-misunderstood or misinterpreted by the witnesses who testified to them. We therefore see no valid reason for rejecting the evidence of them. Upon this review of the case we conclude that it was fairly tried and that all the specifications of error must be overruled.

The judgment is affirmed and it is ordered that the record-be remitted for the purpose of carrying the sentence into execution.