Com. v. Schmous , 162 Pa. 326 ( 1894 )

Opinion by

Mr. Chief Justice Stebbett,

We have not been furnished with any of the evidence adduced on the trial of this case, except the defendant’s own testimony. As therein given, his own version of what occurred on the night his wife and two children were killed points to the ■conclusion that they were brutally murdered. The only serious question that arises thereon is whether he himself was the •guilty agent. It appears, however, from the opinion of the court, overruling the motion for a new trial, etc., that other facts and circumstances, testified to by other witnesses, were quite sufficient to justify the conclusion embodied in the verdict. Indeed, it is practically conceded by his counsel that the testimony introduced by the commonwealth, if believed by the jury, was quite sufficient to warrant them in finding the defendant guilty of murder of the first degree. In view of the evidence, the case was clearly for the jury. It involved questions of fact which were exclusively for their consideration; and to them it was properly submitted in a clear and impartial charge, defining the crime of murder, and the different degrees thereof, and correctly stating the character of the proof necessary to justify a conviction of murder of the first degree.

Twelve carefully prepared points for charge — suggested by the evidence — were submitted by the learned counsel for defendant, all of which, except the 6th, 9th and 12th, were affirmed without any qualification. In the points thus affirmed, every phase of the case was so clearly presented that the jury could not mistake their duty in considering and disposing of the questions before them. For example they were instructed, inter alia, that, “ the burden of proving every element of any offence charged is upon the commonwealth and never shifts or changes; ” that “where the commonwealth asks a conviction upon circumstantial evidence, such evidence must point with steady and unerring aim to the guilt of the accused, beyond a reasonable doubt, and must be inconsistent with any reasonable hypothesis of his innocence, before the jury can convict him; ” .and that, “ evidence of good character is to be regarded as a substantial fact, like any other tending to establish defendant’s innocence, and ought to be so regarded by the court and jury.”

It is unnecessary to notice the remaining six affirmed points further than to say that they are similarly appropriate and instructive to the jury. There is no complaint as to two of the points refused. They were rightly answered in the negative. For reasons given in the learned judge’s answer to the 12th point, it was also rightly refused; and hence the second specification, relating thereto, may be dismissed without further comment.

The first specification of error is based on the erroneous assumption that “ The verdict rendered by the jury was a nullity.” There is nothing upon which to base this assumption except the answer elicited by the unwarranted polling of the jury after the verdict had been regularly rendered, recorded and affirmatively responded to by the jury. As thus recorded and assented to, the verdict is: “ That they find the defendant George Schmous (he being present in open court) guilty of the felony wherewith lie stands charged, to wit: guilty of murder in the first degree, and so they say all.”

What actually occurred at the time is concisely and chronologically stated by the learned trial judge in his opinion overruling the motion in arrest of judgment, thus : “ The jury having been brought into court, the prisoner being in the dock, was directed to stand up, and the jury was then directed to look upon the prisoner. The clerk, addressing the jury, said: ‘ Gentlemen of the jury have you agreed upon your verdict?’ to-which each answered, ‘ We have.’ ‘ Who shall answer for you,’ to which each answered, ‘ Our foreman.’ The clerk then said: ‘In this issue joined between the commonwealth and George Schmous, the prisoner at the bar, how say you, is he guilty of the felony wherewith he stands charged, or not guilty?’ To-which the foreman answered, ‘We find him guilty of murder-in the first degree.’ The clerk then handed the indictment to the court, made the entry on minutes and then said to the jury: ‘ Hearken to your verdict as the court has recorded it; in this-issue joined between the commonwealth and George Schmous, the prisoner at the bar, you say you find him guilty of murder of the first degree, and so you say all ? ’ to which each answered, ‘ we do.’ After this was done counsel for defendant asked a poll of the jury, which being granted, the clerk again put to each juror separately the question: ‘ In this issue joined between the commonwealth and George Schmous, the prisoner at the bar, how say you, is he guilty of the felony wherewith he stands charged or not guilty ? ’ to which each answered* ‘ Guilty.’ No objection was made to the answer by anyone. Counsel for defendant claims that the verdict of murder in the first degree, as so rendered and recorded, was nullified by the failure of each juror to specify the degree in his answer upon the polling.”

According to the well settled practice in the oyer and terminer, the request to poll the jury came too late, and should have been denied. The verdict in due form had already been not only announced, but recorded and affirmatively responded to by the entire jury. The separate answers, given after all that was done, if not in harmony with the previously recorded verdict may be treated as mere surplusage: but, we are satisfied, as was the learned trial judge, that the answers referred to were intended and understood to be in full affirmance of, and therefore in harmony with the verdict as previously announced by the jury through their foreman, Recorded and assented to by all of them. There is nothing in the alleged error that would warrant a reversal of the judgment.

The second specification has already been disposed of. As to the third assignment of error, there is nothing in the record to warrant the conclusion that the court either entertained or should have entertained any doubt as to defendant’s sanity when he was called for sentence; and hence there was no error in disregarding his so-called plea: Com. v. Buccieri, 153 Pa. 535, 554.

The fourth specification is not according to rule: but, waiving that, we have examined the portions of the charge therein referred to, and find nothing in either of them that can be regarded as erroneous.

The offer recited in the last specification was rightly excluded.

We have examined the record with that care which the gravity of the judgment demands, and have failed to find any substantial error therein. A fair and impartial trial, in which defendant’s legal rights were properly respected, appears to have been accorded to him.

The judgment of the court of oyer and terminer is therefore affirmed, and it is ordered that the record be remitted to said court for the purpose of execution.