Commonwealth v. Razmus , 210 Pa. 609 ( 1905 )

Opinion by

Mb,. Chiee Justice Mitchell,

The prisoner being on trial for murder, and the killing not being really denied, the principal question at issue was the degree of the crime. The commonwealth pressed for a verdict of first degree partly on the theory that the killing was done in the perpetration of a robbery. Evidence tending to this conclusion was admitted, but before the final argument by the district attorney the judge informed him and subsequently charged the jury that the evidence was not sufficient and that a verdict should not be rendered on that basis. This was a distinct and peremptory ruling in the prisoner’s favor, and it is certainly a novelty to find it assigned by him for error. The complaint is that it was not made until prisoner’s counsel had argued the case, on that point as well as others, to the jury.. But that did not make it any the less in prisoner’s favor. It may be that it was his counsel’s argument that brought the judge to his conclusion. Zell v. Commonwealth, 94 Pa. 258, is cited, but is not applicable. There this court said that incompetent testimony as to declarations admitted on the condition that they should be made competent by subsequent evidence that they were repeated by the witness to the prisoner, should be ruled out promptly on its becoming apparent that the condition would not be fulfilled, and that the period of the trial at which they were struck out and directed to be disregarded might be material. In the present case the evidence was not incompetent but insufficient, and all that was necessary was that the jury should be so told before they began to consider their verdict.

The second and thirteenth assignments are to matters which were for the jury. Whether a blind woman could tell accurately the amount of money her husband had when he left home, and whether a woman in bed in the house could recognize a voice outside in the adjoining alley were questions of fact. The latter witness in answering a question added a few words of her husband’s conversation, not admissible separately, and the appellant moved to have “her testimony stricken out.” As most of it was clearly competent, the motion was properly overruled. If the incompetent part was material, which is by no means clear, the motion should have been directed explicitly to that part.

A similar remark will dispose of the eighth assignment. If the judge in referring to the testimony of a witness misquoted it in a material point, his attention should have been called to the error at once, before the jury retired. A party may not sit silent and take his chances of a verdict, and then if it is adverse complain of a matter which if an error would have been immediately rectified and made harmless.

The remaining assignments are either trivial criticisms of the language of the charge, or the stereotyped complaints that the charge gave too much prominence to the evidence of the commonwealth, and not enough to that on behalf of the prisoner. These might be called the common counts in error. None of them has any merit: Com. v. Kaiser, 184 Pa. 493.

The judgment is affirmed and the record ordered to be remitted to the court of oyer and terminer of Luzerne county for the purpose of execution.