Sullivan v. Commonwealth

Mr. Justice Paxson

delivered the opinion of the court, May 3d 1880.

Beyond the fact that a human life is at stake, this record presents no question of importance. The principles of law applicable to it are familiar, and do not need elaboration.

The first, third and fourth assignments refer to the admission of the dying declarations of the deceased. We perceive no error in their admission. There was abundant evidence to show that the deceased regarded her wound as mortal from the first, and believed she was going to die. The belief of a speedy dissolution is the. test by which the competency of dying declarations is to be: measured. Nor was there error in the admission of the evidence showing the deceased’s condition at the time the declarations were made.

2. This assignment alleges error in the admission of certain articles of clothing, upon the ground that they were not properly identified. It is wholly unsustained and need not be discussed.

5. There was no error in the admission of Dr. Butcher’s testimony, or of the cloth or muslin used in his experiments. He was called as an expert to show the eifect of powder marks where a pistol is fired at short range. The testimony may not have been very important. I do not think it was. But it was clearly competent. This assignment was not pressed. The competency of such evidence was settled in Quigley v. Commonwealth, 3 Norris 18.

6. This assignment alleges error in the charge, which is set forth in extenso. There is not a word in the paper-book pointing out what portion of it is objectionable, and as it does not appear to have been excepted to, we may well assume that it contains no serious error. The only reference to it in the printed argument on behalf of the plaintiff is this: “As the judge’s charge goes up with the record as part of it, and as the court review the record and evidence under the Act of 1870, the defendants will receive the benefit of the court’s review.” We find no serious error in the charge.

7th to loth. These assignments all allege error in the answer to points, and are all improperly assigned. We are not bound to notice them, but in favorem vitas will treat them as if they were in proper form. A careful examination of the respective points and the answers of the learned judge thereto, discloses no serious error. The general charge, taken in connection with the answers to points, was a fair presentation of the law of the case to the jury, and furnishes the prisoner no just cause of complaint.

16. This is the general assignment that the verdict was against the law and the evidence. As, however, it was evidently intended to call upon the court to pass upon the evidence, under the Schoeppe Act, we will review it so far as to say that there is abundant testimony to establish the elements of murder in the first degree. When a strong man assaults a defenceless woman in her bed-room with a deadly weapon such as a loaded revolver, and fires not one, but two balls into her body, with deliberate aim, each time at a vital part, the first ball entering her head and the second her stomach, it is idle to say that the case lacks the essential elements of murder of the first degree. The jury may have made a mistake in the degree, but we cannot say so. The evidence was properly before them; it was their duty to W'eigh it, and they have performed that duty.

The judgment is affirmed, and it is ordered that the record be remitted to the Oyer and Terminer for the purpose of execution.