Commonwealth v. Keller

Opinion by

Mr. Justice Fell,

The defendant, in support of the allegation that he had acted in self-defense, was allowed at the trial without objection .to offer proof of threats made by the deceased. Some of these threats had been made in the presence of the defendant, and heard by him; others had been made in his absence and had not been communicated to him. In three of the assignments it is alleged as error that the court failed to call the attention of the jury to the effect that should be given to uncommunicated threats, and that in this respect the charge was inadequate and misleading. In connection with these assignments only that part of the charge is given which refers to the effect on the defendant’s mind of threats made by the deceased. Earlier in the charge the attention of the jury had been called to the threats which the deceased and the accused had made against each other, and it was then clearly stated that the purpose of this testimony was to throw light on the relation in which they stood to each other and the condition of their minds when they met. It was said: “ But in considering the evidence, you will begin with that which throws light upon the relation of the two men one to the other; and these threats on one side or the other, if you believe they were made, will show you the condition of mind of these two men when they came near or when they approached each other—at least it will have a tendency to do that.” It was for the purpose thus stated that the testimony as to threats made by either was admissible. Proof of uncommunicated threats made by the deceased was received as tending to show his motive and intention, and thus giving rise to an inference that in the' fatal encounter he was the aggressor. The effect to be given to such testimony might have been more fully explained, but what was said in the charge in relation to it was not misleading, and in the absence of a request for more specific instructions on the subject it cannot be said that the charge was inadequate.

The photograph of .the deceased-was offered by the commonwealth to rebut testimony that the defendant was a smaller man than the deceased. This is a kind of testimony which should be received with caution. Tn a recent case, Beardslee v. Columbia Township, 188 Pa. 502, it was said by our Brother Mitchell: “Photographs are competent evidence, and when properly taken are judicially recognized as of a high order of accuracy. See Udderzook v. Com., 76 Pa. 340. But in careless, or inexpert, or interested hands they are capable of very serious misrepresentations of the original. Before they are permitted to be used in the trial, therefore, there should always be preliminary proof of care and accuracy in the taking of them, and of their relevancy to the issue before the jury.” On a question of size a photograph would probably be less reliable than on one of identity. But where other objects, whose size is known, are shown in the picture, and appear therein to have been at the same distance from the camera as the object whose size is sought to be established, a reasonably safe means of comparison is furnished. This was a full length photograph, and the witness who identified it and testified to its accuracy was represented in it, standing by the side of the deceased. This gave the jury a sufficiently safe guide.

The only remaining assignment which need be noticed relates to the refusal of the court to direct the district attorney to call a witness, Charles Lown, whose name was on the bill of indictment. To the request of the defendant’s counsel, the district attorney replied that he had called all the eye-witnesses to the occurrence, and the court sustained this refusal to call the witness, on the ground that his testimony would be cumulative merely. It appears that this witness saw the shooting, and that the fact that he was present had been disclosed by witnesses before examined. The offer should however be judged in the light in which it was presented to the court at the time. The statement of the district attorney that he had called all the eye-witnesses was not controverted, and the fact that other witnesses had testified to the presence of this one was not called to the attention of the court. It then appeared to the court that the witness could have testified only to the threats which had been made some hours before the encounter, as to which there was no dispute.

The refusal to require the commonwealth to call this witness would not be ground for reversal even if it had appeared that he was present when the deceased was shot. Sixteen eyewitnesses had already been examined. While it is the duty of the district attorney in such a case as this to present all the testimony' on the material facts, whether adverse to the defendant or favorable to him, the court in its discretion may limit the number of witnesses to be called. There was not a withholding of testimony favorable to the defendant or a failure on the part of the district attorney to present to the jury all the material facts. It was the right of the defendant to have all of the facts connected with the shooting fully and fairly disclosed by the prosecution, but it was not his right to have them repeated over and over indefinitely by all the persons who saw the occurrence.

The case seems to have been tried with great care and ability by the learned judge, and the record discloses no error calling for a reversal.

The judgment is affirmed.