Commonwealth v. De Leo , 242 Pa. 510 ( 1914 )

Opinion by

Me. Justice Elkin,

The defendants were convicted in the court below of murder of the first degree. The crime was committed in the perpetration of a robbery, or at least in an attempt to perpetrate a robbery. The verdict was fully warranted by the evidence which showed that the defendants in pursuance of a premeditated plan to perpetrate a robbery, acted together in furtherance of that unlawful purpose until the final act was committed which resulted in the death of their victim. At the end of the trial the evidence produced by the Commonwealth stood unchallenged and uncontradicted, and the verdict returned logically followed. Under the facts this appeal is without merit and our only concern is to see that no substantial error was committed at the trial to the prejudice of the rights of the defendants under the law. Counsel for defendants submitted the following point, ahd asked the jury to be so instructed: “The defendants being jointly indicted and tried together, the jury has the power to return one verdict as to one and a different verdict as to the other.” The point was refused without being read, the trial judge giving as his reason for refusing the point, that it was not applicable to the facts of the case as shown by the evidence. The refusal to affirm this point is made the subject of the first assignment of error. The jury were not misled by the refusal of the trial judge to affirm the point, because neither the point, nor the reáson for refusing it, was read in their hearing. Hence, the exact question for decision here is whether under the established and uncontradicted facts, the trial judge was bound to affirm an abstract proposition of law, correct in itself, but which might have been misleading under the evidence. All of the testimony tended to show that the defendants acted together in pursuance of a preconcerted plan to perpetrate a robbery; that Wells fired the revolver and De Leo held an open razor in his hand, raised in a threatening manner at the time of the shooting; and that after the murdered man was shot Wells took money out of one pocket of Calvacante and De Leo out of another pocket. The defendants acted in concert from the time they met Calvacante and wife until the robbery was attempted and the murder was committed. If one was guilty, the other was likewise guilty, no matter which one fired the fatal shot. Under the statute all murder which shall be committed in the perpetration of a robbery, or an attempt to perpetrate a robbery, shall be deemed murder of the first degree. In the present case the evidence, if believed, Showed a clear intent to commit a robbery; that a robbery was actually committed; and that the two defendants acted together and in concert in the attempt to perpetrate that crime. Under such circumstances both are equally guilty and the point submitted but refused could only have served to confuse the minds of the jurors. It is true of course that it is the duty of the jury to ascertain the degree of murder, but in other parts of the charge the jurors were so instructed. Among other things the trial judge said: “If you find the defendants guilty, you have the right to say whether they be guilty of murder of the first degree or murder of the second degree. In the statute to which we have called your attention, the degree of the crime as between murder of the first degree and murder of the second degree is always for the determination of the jury and we do not mean to take away from you or interfere with the right you have under the law of fixing the degree.” This is a clear and concise statement of the law and could not have been misunderstood by the jury. It is not material which of the two defendants fired the fatal shot. Both participated in a common purpose, the perpetration of a robbery, or the attempt to perpetrate that crime, in the commission of which the murder resulted. In the eyes of the law both are equally guilty, and under these circumstances it was not reversible error for the trial judge to refuse to affirm the point about which complaint is here made. This conclusion is amply sustained by many of our own cases: Johnson v. Com., 85 Pa. 54; Weston v. Com., 111 Pa. 251; Com. v. Major, 198 Pa. 290; Com. v. Biddle, 200 Pa. 640; Com. v. Sutton, 205 Pa. 605.

The second assignment is without substantial merit when considered in connection with the whole charge. The jury were instructed that if satisfied from the evidence beyond a reasonable doubt, that the murdered man was killed by the defendants, or either of them, in the perpetration of or attempt to perpetrate a robbery in the manner charged by the Commonwealth, their verdict should be guilty of murder of the first degree. This amounted to nothing more than a plain statement of the law as applied to the facts of the case being tried. In other parts of the charge the jury were instructed that it was their duty to ascertain the degree. The instruction complained of is fully sustained by Com. v. Romezzo, 235 Pa. 407.

The third and fourth assignments relate to the dying declaration of the murdered man and the admission of certain testimony for the purpose of laying a foundation for its introduction in evidence. These objections are too technical to be convincing. The belief of speedy dissolution is the test by which to measure the competency of dying declarations: Sullivan v. Com., 93 Pa. 284. The question is whether the declarations were made under a sense of impending death. It is not necessary that it should be stated at the time to be so made: Kilpatrick v. Com., 31 Pa. 198. Whether the declarant was under the belief of his impending dissolution is a preliminary fact to be proved by the party offering the dying declaration in evidence, and the proof offered for this preliminary purpose is addressed in the first instance to the conscience of the court. It is not necessary to prove that the declarant stated he was making his declaration under a sense of impending death. It is enough if it satisfactorily appear in any mode that the statement was made under that sanction: Meyers v. Com., 83 Pa. 131; Com. v. Mika, 171 Pa. 273; Com. v. Roddy, 184 Pa. 274; Com. v. Latampa, 226 Pa. 23. In the present case the murdered man on several occasions declared he was mortally wounded and was dying; he acted in the belief that death was impending by making a will and disposing of his worldly affairs; and he made the declaration in the presence of the defendants. The testimony shows that his mind was clear and that he knew what he was doing. Under these circumstances, and others not recited, there is not the slightest doubt of the competency of the dying declarations of the murdered man under the authority of all of our cases.

It need only be said in conclusion that we find no reversible error in this record. The defendants had a fair and impartial trial. They were ably represented by counsel who were vigilant in the assertion of every right to which the accused were entitled. They were found guilty on evidence which fully justified the verdict. They transgressed the law and must answer for that transgression.

Judgment affirmed in each case and record remitted for the purpose of execution.