Commonwealth v. Zec , 262 Pa. 251 ( 1918 )

Opinion by

Mr. Justice Walling,

This appeal by defendant, Lazar Zee, is from judgment upon conviction of murder of the first degree. He and Novak Zinaic, the deceased, were fellow-countrymen, and, on the evening of October 28, 1916, met with other acquaintances at the house where defendant boarded in Woodlawn, Beaver County. There was drinking, in which the deceased and defendant joined; the latter, however, says he knew what he was doing. During the evening, angry words passed between them, and the deceased spoke of the defendant as “a pig,” to them a deeply offensive epithet. About 11 o’clock, the proprietor suggested that those not boarding at his house should depart; the deceased, with a companion, named Paunik, left and the defendant followed and caught up with them and the three walked along the street for some distance when, according to the Commonwealth’s evidence, the defendant shook hands with them, bade them good night and immediately drew his revolver and fired two fatal shots through the body of Zinaic, while he was standing quietly on the street. Defendant returned to his boarding house, admitted the shooting and was going away when he was arrested. After attempting to shoot the officer, defendant threw his revolver into a coal box where it was found loaded with three cartridges and two empty shells. At the same time, while trying to escape, he was shot by the Officer. This resulted in the amputation of his left leg and kept him in the hospital until near the time of his trial the following June. A loaded revolver was found in the hip pocket of the deceased, and the defendant, who offered no testimony but his own, said, inter alia, that the deceased assaulted him at the boarding house and again as they were about to part on the street, at which time he saw a revolver in Zinaic’s pocket and saw him make a motion as if to draw it, and through fear he (defendant) fired the two shots in the air.

The verdict was, “Guilty of murder in the first degree, but recommend the mercy of the court.” In our opinion the latter clause was surplusage and did not vitiate the verdict, it being without effect so far as relates to the law of the case: State v. Bennett (Supreme Court, South Carolina), 18 S. E. 886, 887; and see also the opinion of Chief Justice Campbell in the well-considered case of Penn v. The State, 62 Miss. 450, 473. The defendant’s crippled condition naturally appealed to the sympathy of the jury and may have inspired the recommendation to mercy. Thereafter, the court allowed the defendant the unusual privilege of filing additional reasons for a new trial from time to time for nine months and granted every indulgence consistent with the due administration of justice. We have also given this case consideration on two occasions, and, while we find no reversible error, the recommendation to mercy may still be considered on the question of executive clemency.

There is nothing in the action of the trial court in refusing the motions for a continuance and a new trial that indicates such an abuse of discretion as to require a reversal of the judgment. The case was not called for trial until nearly eight months after the homicide, meantime defendant was confined in a hospital. Fifteen days, before the trial, at his request, the court appointed counsel to defend him. The reason urged for the continuance was inability to procure witnesses; yet counsel continued zealously their search for additional evidence for nine months after the trial and only found one witness and all she claims to have seen, was the trouble at the boarding house, although she makes the incompetent assertion that defendant informed her that his brother had been murdered by the deceased twelve years before, in the old country. Manifestly the discretion of the court was not abused in refusing a new trial on that ground. And, as this witness lived at Steubenville, Ohio, and was known to defendant from the time of the homicide, no good reason appears why she was not produced at the trial. '

There is no merit in the cdmplaint that the court erred in refusing to discharge- the defendant under the two-term rule. That rule never applies where the delay is at the application of the defendant or results from his disability, misconduct or assent: Commonwealth v. Jailer of Allegheny County, 7 Watts 366; Commonwealth v. Sheriff, 16 S. & R. 304. Aside from that, the Act of February 18, 1785, reenacted by Sec. 54 of the Criminal Procedure Act of March 31, 1860, P. L. 427 (Stewart’s Purdon, Yol. II, p. 1818), is a habeas corpus act to relieve a defendant from unjust imprisonment and not to shield him from just punishment: Commonwealth v. Supt. of County Prison, 97 Pa. 211, 214; Clark v. Commonwealth, 29 Pa. 129. It is remarkable that on the same day the defendant moved for a continuance because of lack of time to secure witnesses, he also moved for his discharge because of the duration of his imprisonment.

The trial court may, but is not bound to, order the district attorney to call all the witnesses who were present at the commission of a homicide: Commonwealth v. Deitrick, 221 Pa. 7; Commonwealth v. Keller, 191 Pa. 122.

The statement of defendant that he had been driven from Steubenville, Ohio, by the deceased’s brother had no bearing on the case and was properly stricken from. the record, especially as there was no offer to show any concerted action between the brothers.

The eighth assignment of error is a flagrant violation of our Rule No. 26, in that it embraced four separate rulings of the trial court, to each of which a bill of exception was sealed. Such practice cannot be sanctioned even in a capital case. However, we have examined each of the questions grouped in this assignment and find them without substantial merit. Where a question, improperly rejected, is later answered in full, the error is cured. It is competent for a witness to testify to the state of his own mind as to intent, fear, etc., where that is material and an open question (see Commonwealth v. Wooley, 259 Pa. 249; Commonwealth v. Hazlett, 14 Pa. Superior Ct. 352, 369), but it-is not competent for the prisoner to testify simply that he had a secret undisclosed reason to fear the deceased.

Where one intentionally uses a deadly weapon upon a yital part of the body of another, there is a legal presumption of an intent to kill which cannot be rebutted by the assailant’s own testimony that he did not so intend. See McCue v. Commonwealth, 78 Pa. 185, 191; Commonwealth v. Drum, 58 Pa. 9, 17; Cathcart v. Commonwealth, 37 Pa. 108, 112. But whether the assailant intended to use the weapon upon a vital part is a question of fact and he may deny that he intended to so use it, or that he intended to take life.

We find no error in what the court said on the question of self-defense; in fact, defendant does not claim that he killed Zinaic in self-defense or that it was necessary for him to do so, but says he fired in the air to frighten him. Defendant’s own evidence fails to make a case Of self-defense. A man cannot follow another out of a house and along the street and then shoot.him to death and escape punishment because the other man had a gun in his pocket which the accused says he thought he was about to draw.

The criticism that the charge, as a whole, was inadequate is not well founded; aside from that the charge is not quoted in the assignment.

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