Alexander v. Commonwealth , 105 Pa. 1 ( 1884 )

Mr. Justice Trunkey

delivered the opinion of the court, March 3, 1884.

The defendant pleaded in abatement that he was baptized by the name of Sabato D’Allessandro, and by that name always since has been called or known. It was unnecessary to make the averment of his baptism, but having made it, the burden was on him to sustain it by proper evidence. He was permitted to give evidence that he had borne and used the name as if he had not alleged it was his baptismal name. The jury were instructed that it was incumbent upon the Commonwealth to satisfy them beyond a reasonable doubt that the real name of the defendant is that stated in the indictment; otherwise to render a verdict in his favor. The question was submitted whether in this country the defendant had assumed and assented to the name Sabato Alexander, and there was ample testimony in the affirmative. One witness directly asked him if that was his name, and he answered that it was. Complaint is made that the Court remarked in the charge, “It appears in evidence that the Italian for the name Alexander is Allessandro or D’Allessandro,” and that there is no such testimony. But although objection was made when the Court asked the interpreter. “What is the Italian for Alexander?” subsequently the interpreter was called and sworn, and without objection to the form of the oath or to, his testimony,'he said that the Italian word D’Allessandro is the same as the English word Alexander. The second and third assignments of error are not sustained — the first was not pressed..

A motion was made in arrest of judgment upon the verdict in the issue on the plea in abatement, upon the alleged ground that the jury were permitted to separate during the adjournment of the court. This does not appear of record — the affidavit of Mr. Walter is not a part of the record — and the refusal of the motion therefore is not subject to review. But we remark in passing that in the trial of that issue neither the life nor liberty of the defendant was in peril; the trial was to determine whether his true name was set forth in the indictment or in his plea, and we think it was entirely discretionary witli the court below whether under the circumstances of the case there was good cause for keeping the jury secluded.

After the names of forty-nine jurors had been drawn from the box which had contained sixty, and eight jurors had been separately sworn, it appeared that eleven of the paper pellets had been clandestinely removed; whereupon the Court directed the clerk to prepare eleven pellets in place of those which had been removed, and again put all the pellets in the box; and further ordered that the drawing of the jury be commenced de novo. The defendant complains that the tendency of that order was to put him twice in jeopardy, and that the Court had no power to make it. Ho was not in jeopardy at the time of making the order. The trial begins when the jury is charged with the defendant, and that is at the moment a full jury is impanneled and sworn; he is not in jeopardy before. Up to that point the Court may postpone the trial as lawfully at one stage of the proceedings as another. A man is not in peril from the verdict of a jury till the full number are qualified to hearken unto the evidence and make deliverance. Eleven jurors, or eight, can give no verdict. McFadden v. Com., 23 Pa. St., 12. The practice as to the time of administering the oath to the jurors is not uniform; in some districts each juror is separately sworn as called and unchallenged, and in others none are sworn until all are selected. In either case the tribunal is unorganized while there are less than twelve, and until it is organized, for good cause the Court may direct the drawing of the jurors to begin anew.

With some- doubt as to the sufficiency of proof that' the deceased had assaulted the defendant, the Court admitted evidence of the reputation of the deceased for brutality, vindictiveness and violence. An offer was made to follow this with evidence that the deceased had committed divers crimes, involving a ferocious and cruel disposition on his part, and that before he was killed the defendant had knowledge of said offences. No precedent has been cited for the proof of such acts by the deceased in bis lifetime, nor does there seem to be reason for their investigation where they are not in issue. Conceding that the defendant had proved that he was attacked by -the deceased, then it was competent to prove his bloodthirsty character, his bodily strength, how he was armed, the manner of the assault and all other circumstances tending to show that the attack was felonious, or that it was believed to be felonious by the defendant. But it is settled that specific criminal acts at other times, affecting other people than the slayer, which may have given the deceased his bad character, are incompetent. Were evidence of such acts competent, so would be repelling evidence, and the side issues would become as numerous as the offences charged against the deceased. The offer to prove “ a series of five specific acts of violence known to the defendant,” meant an investigation of each act as plainly as did the separate offers to prove each.

The Commonwealth gave evidence of the defendant’s declarations made in the office of Justice Hower. For the purpose of explaining these the defendant proposed to prove his declarations, made more than an hour afterwards, and a mile and a half distant from Hower’s office. Instead of showing that his offer was part of a continuous conversation began at the office of Justice Hower, the evidence shows the contrary. Its rejection was clearly right.

The nineteenth assignment of error is to the following portion of the charge: “ Where the defendant sets up the plea of self-defence to an indictment of murder, he must satisfy you of the truth of the plea by the preponderance of testimony. If he failed to do so in this case, then he is guilty of murder in the first or of the second degree, or of voluntary manslaughter, as you find the facts may warrant.”

This, if exceptionable by itself, with the context is free of error. In the instructions every point put by the defendant’s counsel was affirmed, and the facts submitted with fairness to him. The jury were told, “ If the facts, as proven will support any reasonable theory consistent with the defendant’s innocence, then the defendant must be acquitted.” Also, “ If the Commonwealth has satisfied you that the defendant inflicted the wounds on the body of the deceased, and that he died from said wounds, then your next inquiry will be whether the Commonweath has satisfied you beyond a reasonable doubt that the defendant is guilty of murder, and if so, of what degree, or of voluntary manslaughter.” Then the jury understood from the remark objected to, that if the defendant killed the deceased, and the killing was not in self-defence, he was guilty either of murder 'or voluntary manslaughter. The evidence admits of no other conclusion; or, really, there was no evidence that the killing was involuntary.

Tinder the last assignment it was argued that there was not evidence of the existence of the ingredients necessary to constitute murder in the first degree. The evidence is too strong for doubt, that the deceased at tlie moment of the assault was in liis own bed, and all the other occupants of the room were in theirs, except the defendant; that none heard the defendant come into the room, and it was dark; that with his own hatchet he inflicted the numerous wounds upon the head and upper part of the body of the deceased ; that the defendant ivas not heard to make outcry, and received no injury unless a slight cut on the hand, which healed within a few days; and that the deceased cried, “ Stoppa, Jimmie ! Stoppa, Jimmie ! What is the matter with you ? ” and he was unarmed. The legitimate inference, we think, is not weakened, but strengthened, by other facts in evidence. When a man quietly approaches another’s bed in tlie night, and makes a furious assault with a deadly weapon, it is presumed that he intends the natural consequences of his act. If the jury believed the testimony they rightly found that the killing was wilful, deliberate and premeditated.

The assignment that tlie Court erred in refusing to arrest judgment was not pressed, for the obvious reason that no ground for the arrest appears of record. But it was urged that tlie Court erred in denying the motion for a new trial because tlie jury- were allowed to separate and part of them, attending church, heard a sermon on the text, “ Thou shalt not kill.”

At common law the refusal to grant a motion for new trial being a matter of discretion, is no ground, for a writ of error. The Act of May 19,1874, provides that on tlie trial of all cases exclusively triable in the Courts of Oyer and Terminer, 41 exceptions to any decision of the Court may be made by tlie defendant, and a bill thereof shall be sealed in the same manner as is provided and practiced in civil cases; and the accused after conviction and sentence, may remove the indictment, record and all proceedings to the Supreme Court.” It is contended that as any decision of the Court may be excepted to, and all proceedings may be removed, the refusal to grant a new trial may be reviewed. Previously it had been enacted that in all cases of imirder in the first degree removed to the Supreme Court, the judges shall review both the law and the evidence, and determine whether the ingredients necessary to constitute murder in the first degree were proved to exist; the Act of 1874 enables this to be done by providing for the removal of all proceedings. But it was not the intendment that decisions which have always rested in the sole discretion of the Court where the cause was tried, should be made subject to exception and review. If this were so the accused could except to the refusal of his motion to postpone the trial, or to the granting of a motion by the Commonwealth for continuance, or to the refusal of his apjclication for attachment for an absent witness, and the like, as well as to the refusal of his motion for new trial. The decisions subject to exception within the purview of the statute are similar to such as were so subject on the trial of a civil cause, as the admission or rejection of testimony and instructions to the jury. This is plainly expressed in the statute, and like plainness is requisite to overcome the rule at common law that decisions of matters within the discretion of the Court are not subject to writ of error.

In this case we think there is little reason for regret that the refusal of a new trial is final. On its trial every doubtful question was solved in favor of the defendant. His claim that he struck in self-defence was submitted with fair instructions, although the evidence thereof was slight, if any at all. The learned judge recognized that, u It is undoubtedly the law of this State that on trials for homicide, jurors ought not to be permitted to separate while thé prisoner is in their charge ; ” and he believed this rule had been complied with, at least in its spirit. Upon careful consideration he concluded that the sermon (not a fragment of it) neither had nor tended to have the effect of biasing the minds of the jurors or of disqualifying them for the proper exercise of their functions; and in this view he was likely correct.

There is a growing laxity in the observance of the rule which, if unchecked by the Courts of Oyer and Terminer, may induce legislation either abrogating the rule itself, or providing a remedy when it shall not have been enforced. It seems to us that compliance with the rule ought to be so strict that no plausible charge could be made that the jury were not kept free from every improper communication or intrusion. Increasing the number of subjects for review in homicide cases is detrimental to the public, and departure from old and familiar rules strongly tends to promote such increase. There was much appearance of departure in this case from an undoubted rule, and it is not strange- that the' learned and able counsel for the defendant have sougljf, for that cause, to obtain another trial.

The judgment of the Court of Oyer and Terminer of Northampton County is affirmed, audit is ordered that the record be remitted to said court that the sentence may be executed.