Commonwealth v. Pacito , 229 Pa. 328 ( 1911 )

Opinion by

Mr. Justice Elkin,

Appellant shot and killed the deceased for whose murder he was conyicted. Pacito in the evening came to the boarding house in which Rizzi, the murdered man, was eating his supper; called him to the front door, drew a revolver and fired three shots, all of which took effect, resulting in almost instant death. He then ran away and while attempting to make his escape threw the revolver into a graveyard. The manner of the shooting and the acts of appellant indicate malice, deliberation and premeditation. The killing was willful and brutal and unless excused by the plea of insanity set up as a defense, the crime committed was clearly murder of the first degree. The jury so found and the evidence is ample to sustain the verdict. It must be sustained unless there was. reversible error in the submission of the case. The first assignment is without substantial merit and need not be discussed. . The admission of the evidence complained of could not have done appellant any harm and certainly does not constitute reversible error. The second assignment relates 'to certain portions of the charge of the trial judge. It is argued that the language used was tantamount to binding instructions for a verdict of first degree murder and that it was in the nature of a comment upon the failure of defendant to take the stand as a witness. We do not so read nor understand the language used. To give it such an interpretation it would be necessary to. read into the charge words not used or to give the words used a meaning not intended. It would also mean that other parts of the charge must be disregarded and that the particular portions complained of should be taken as the final instruction to the jury. The court could not sum up both sides of the case at the same time and very properly began by calling the attention of the jury to the contentions of the commonwealth. This was followed almost immediately by explaining to the jury that what had been stated relative to the case of the commonwealth depended upon the fact whether the accused was sane or insane at the time of the shooting. All of which was entirely correct. The facts connected with the shooting were undisputed and appellant either committed a deliberate murder or did not commit any crime because being insane he did not know what he was doing. These questions were all submitted to the jury in the course of the whole charge.

The third and fourth assignments relate to the charge of the court on the question of insanity. It is not what the court said that is made the subject of complaint but what was left unsaid. The error alleged is that the trial judge failed to instruct the jury as to delusional insanity which was the specific form of mania relied on as a defense. In the charge insanity was said to be divisible into three general kinds or forms, that is, where the accused party did not know what he was doing; that he did not know the difference between right and wrong; or, that he was moved by an insane impulse, impossible of resistance, to commit the act. All that was said on the general subject of insanity, was clearly within the rule as laid down in our cases, but it is true no reference was made to the alleged fact that the defendant was afflicted with delusions of persecution leading him to imagine that many individuals were endeavoring to kill him and that as a result of these delusions he believed the deceased was about to kill him on the day of the shooting. This was the defense set up and several witnesses testified to facts from which such inferences might be drawn. But appellant had the full benefit of this defense in the argument of his counsel to the jury, and the learned trial judge instructed them that if the killing was the result of an insane impulse there should be an acquittal. If more definite instructions were required it was the duty of counsel to call the attention of the court to the matter by points or .requests. A point was submitted covering the particular matter complained of but it was withdrawn after the delivery of the charge. This indicates that at the time of the trial counsel for appellant was satisfied with the instructions given the jury, otherwise he would have insisted on having his points answered. While it may be stated as a general rule that it is the duty of the trial judge to charge fully upon the law as applicable to the facts, and this without regard to the points presented by counsel, yet when the instructions cover the general rules of law applicable to the case, the omission to charge upon a particular point not called to the attention of the court is not error: McMeen v. Com., 114 Pa. 300; Com. v. Caraffa, 222 Pa. 297. Failure to elaborate questions of law upon which the court has charged is not error when no points are submitted or requests made asking for more definite instructions.

The sixth assignment raises the question whether error was committed in not specifically charging that the commonwealth having proved the killing, the law presumes the homicide to be murder, but that this presumption rises no higher than murder of the second degree. In homicide cases the burden is on the commonwealth to prove the necessary facts to raise the degree of the crime from murder of the second degree to murder of the first degree. In the case at bar the facts shown by the testimony are clearly sufficient for this purpose, if the appellant was of sane mind and knew what he was doing. The learned trial judge did charge that, “in order to raise the crime of murder from the second to the first degree, it is the duty of the commonwealth to convince you beyond a reasonable doubt that there was a willful, deliberate and premeditated killing.” This followed moré definite instructions as to what constituted murder of the first degree and murder of the second degree to which no objection is made. With a charge pointing out clearly the distinction between the two degrees of murder and an instruction that the burden was on the commonwealth to show a deliberate intent to take life before the crime could be raised from murder of the second to the first degree, the jury had an intelligent understanding of the law applicable to the facts of the case, and this is all that is required. Under such circumstances failure of the trial judge, when no request is made to so charge, to instruct the jury that the killing having been proved the law presumes a murder no higher than of the second degree is not reversible error. The facts and not the presumptions control. The remaining assignments are technical and without substantial merit.

A careful review of the whole record has convinced us that the appellant had a fair and impartial trial. He was represented by able and experienced counsel who defended him with skill and intelligence. His cause has been argued with marked ability here but notwithstanding all that has been pressed upon us by his counsel we fail to discover any error that would warrant a reversal with a venire. The facts were for the jury and the verdict is amply sustained by the evidence.

Judgment affirmed and record remitted in order that execution may be had according to law.