Commonwealth v. Chickerella

Per Curiam,

Each of these appeals is from a judgment on a verdict of guilty of murder of the first degree. The prisoners were tried on an indictment against them jointly, and, when the Commonwealth closed, no testimony was offered on their behalf. The case was submitted without argument, and,- in his charge to the jury, the learned trial judge said: “You have listened to the testimony with patience and it has been very direct and been delivered with much detail so that all the facts developed in the case must be clear before your mind. There has been no dispute as to the facts; that is to say, the defense has not made any denial of the testimony as offered by the Commonwealth. And with that in view, it will not be necessary for us to go into detail in analyzing the testimony in order to aid you in determining the question at issue.” It is urged that this was error, as it was in violation of Section 10 of the Act of 1887, P. L. 158, which prohibits any adverse reference by counsel or court to the failure of defendant in a criminal case to offer himself as a witness. There is no reference in that portion of the charge complained of by the first assignment to the failure of either defendant to testify on his own behalf. All the court said and all that, it intended to say was that the facts as presented by the Commonwealth had not been contradicted, and it would be a severely strained construction of the Act of 1887 to hold that this simple statement of the learned court was an adverse reference to the failure of the defendants to offer themselves as witnesses. The jury could not have so understood it: Commonwealth v. Martin, 34 Pa. Superior Ct. 451.

The second complaint of the appellants is that the court, in that portion of the charge complained of in the second and third assignments of error, took from the jury the right to fix the degree of the crime. These assignments are clearly without merit. The jury were instructed, and very properly so, that, under the statute, all murder committed in the perpetration of or in the attempt to perpetrate a robbery is murder of the first degree, even if there be no specific intent to kill the victim. This instruction was given in immediate connection with another, that it was not only the right, but the duty, of the jury, if they found the prisoners, or either of them, guilty, to determine by their verdict whether the guilt was of murder of the first or second degree.'

The three assignments of error are overruled, each judgment is affirmed, and the record is remitted for the purpose of execution.