Commonwealth v. Breyessee

Opinion by

Mr. Justice Williams,

This case appears to have been tried with great care in the court below. The distinctions between murder of the first and of the second degree were plainly pointed out, and the facts were submitted to the jury in a manner of which no just complaint can be made. The conviction of the defendant of the crime of murder of the first degree was the result of the overwhelming weight of the evidence against him.

The learned counsel for the defendant assigns error to the answers made by the learned judge to his first and second points; These points were answered in the affirmative, subject to a qualification, and it is of the qualification that complaint is made. These points drew the attention of the court to the testimony given by the defendant, and asked, in effect, that if, at the time the fatal shot was fired by the defendant, he believed himself to be in danger of death or great bodily harm at the hands of the assailant, and that “ acting on that belief he fired a revolver which killed the wife of the assailant, this would not be murder in the first degree, even though at the time the shot was fired the defendant intended to kill; and this though, in point of fact, there was no foundation for the apprehension of danger to the defendant.” The learned judge affirmed this point so far as it was directed to the degree of the murder committed, but added : “ If it is intended to state the law of self-defence, it lacks one of the essential elements, that he had no other means of escape.” We think the defendant had no reason to complain of his answer. It gave him the benefit of an unqualified affirmance of his point so far as it related to the degree of the offence committed, and it stated correctly the law of self-defence. Life may be lawfully taken in self-defence; but it must appear that he who takes it was in imminent danger of death or great bodily harm and that no other way of escape from the danger was open to him. It is the duty of one who is assailed to flee, if flight is possible; and it is only when he is persuaded that he must suffer death or grievous bodily harm at the hands of his assailant, or take the life of his assailant that he may save his own, that he can justify his act as done in self-defence.

The qualification of the answer to the third point was also a proper one. Where a deliberate purpose is formed to kill A and the defendant fires a pistol at him for that purpose, the fact that the ball misses its intended victim and takes effect on B and kills him, does not relieve the murderer. He is equally guilty whether his effort to kill A results in the taking of his life or the life of B.

The fifth assignment of error is equally untenable. The learned judge instructed the jury in the tests they should employ in determining the credibility of the defendant. He told them that the extent to which he was contradicted by the witnesses, the character of the testimony given by them, the reasonableness of his own testimony, and its consistency with the established facts in the case, were all proper subjects for consideration in determining the credit to which his testimony was entitled. This was a proper instruction to give and was not harmful to the defendant, unless his testimony was of such a character that the application of these tests led the jury to reject it.

The remaining assignment relates to the overruling of the motion in arrest of judgment. The reasons in support of this motion rested on the following circumstance. When the jury came into court to render their verdict, it was delivered and recorded in the usual manner; after which the jurors were discharged and directed to the office of the'county commissioners to receive their pay. After they had left the box the clerk discovered a form,for a verdict in pencil on the back of the indictment, in which the defendant was named “August Maison otherwise called August Breyesse.” The clerk called the attention of the judge to this indorsement, and he ordered the jurors recalled to the box, drew their attention to their verdict as already entered, and to the indorsement on the indictment, and told them if the name as written on the indictment was a mistake and their verdict as recorded was correct they might say so. The jurors thereupon answered that the verdict as recorded was correct. The defendant’s counsel took exception to this action, and moved in arrest of judgment, alleging that the verdict was uncertain, as it was against one person in the pencil indorsement, and against another as recorded. It is a sufficient answer to this motion to refer to the well-settled rule that the verdict as recorded is the verdict of the jury, and that the form prepared in the jury room though handed to the clerk is no part of the record and has no significance whatever. Dornick v. Reichenback, 10 S. & R. 84; Rees v. Stille, 38 Pa. 138 ; Scott v. Scott, 110 Pa. 387. It was wholly unnecessary to recall the jury. It was done out of abundant caution, but it did neither good nor harm. The verdict had been entered on the 'record in proper form, against the defendant on trial; and the pencil memorandum was without the slightest legal significance. The reasons in support of the motion in arrest of judgment were properly overruled, and the judgment appealed from is now affirmed.

The record is remitted for purposes of execution.