Commonwealth v. Romezzo , 235 Pa. 407 ( 1912 )

Opinion by

Mr. Chief Justice Fell,

Tho assignments of error are to the general charge and to the answers to points. We find nothing in them to give rise to even a debatable question. The murder of which the prisoner was convicted was committed in the perpetration of robbery. Of this there was no doubt under the testimony and no question in relation to it was raised at the trial. In the instructions complained of the jury were told that if the murder was committed for the purpose of robbery, it was murder of the first degree and that it was their duty to so find. This plain statement of the law was accompanied with the distinct instruction that it was the right of the jury to ascertain the degree. Nothing of the nature of a direction to find a verdict of the first degree or of a withdrawal of the question of the degree from the jury appears in the charge. The expression of opinion by the learned trial judge that there was no middle ground and no room for a finding of the second degree was followed by the statement, “I do not intend, by saying this, to take away from you or to interfere with the right which you have under the law to fix the degree; but I deem it proper to point out to you what I believe is the measure of your duty.”

In Rhodes v. Commonwealth, 48 Pa. 396; Lane v. Commonwealth, 59 Pa. 371; Commonwealth v. Fellows, 212 Pa. 297, and Commonwealth v. Frucci, 216 Pa. 84, relied on by the appellant, there was either a peremptory instruction as to the degree or what amounted to the same thing, the withdrawal of its ascertainment from the jury. These cases and all of our cases recognize the right of the trial judge to express his opinion of the duty of the jury on the facts, leaving them always free to act. The question of the degree of murder goes to the jury with the question of guilt, and a peremptory instruction which withdraws it is erroneous. But it is always within the province of the court to point out the duty of the jury under the law and the evidence if they are left free to act. Commonwealth v. Sutton, 205 Pa. 605; Commonwealth v. Kovovic, 209 Pa. 465.

The instruction in the charge in relation to the reasonable doubt that should work an acquittal was admittedly full and accurate. Two points on the subject were presented, in one of which the court was asked to say that if there was a reasonable doubt as to any material circumstance sought to be proved by the Commonwealth as a link in the chain of proof, the verdict should be not guilty, and in the other that unless each fact proved by the Commonwealth was consistent with the prisoner’s guilt, etc., there should be an acquittal. In affirming the points the court called attention to the words “material circumstances” used in the first and in answering the second said that the fact must be a material fact that was a necessary link in the chain which made out the Commonwealth’s case. One was answered in the exact language in which it was put, attention being called to its essential feature and in the other the qualification was proper. We find no merit in any of the assignments.

The judgment is affirmed and it is directed that the record be remitted for the purpose of execution.