Commonwealth v. Croson , 246 Pa. 536 ( 1914 )

Opinion by

Mr. Justice Potter,

This appellant was here upon a former appeal, as reported in Com. v. Croson, 243 Pa. 19. In the first assignment of error presented in this appeal, it is alleged that the trial court erred in overruling defendant’s challenge for cause, of one of the jurors, who admitted that he held an opinion as to the guilt or innocence of the defendant, formed from the previous reading of an account of the case. Upon examination, however, the juror stated that he would be able to render such a verdict as would be warranted by the evidence, unaffected by the opinion which he held. This brought him within the limits of the established test, and the exercise of the discretion of the lower court which had the juror before it, will not be disturbed. Com. v. Minney, 216 Pa. 149; Com. v. Spahr, 211 Pa. 542.

In the second assignment of error, complaint is made by counsel, that the trial court erred in refusing a motion to withdraw a juror and continue the case, for the alleged reason that one of the jurors had slept during a portion of the time, at the trial. Opportunity was given to counsel to take testimony in support of this allegation, but no proof was produced. The investigation of the matter, by the trial judge satisfied him that there was no merit in the suggestion that the juror in question was asleep, during any portion of the trial, or that he failed to take in anything of importance. That the discretion of the trial court was properly exercised in this matter, we have no reason to doubt.

In the third assignment of error, counsel for appellant complain that in the cross-examination of the witness Mormon, the district attorney went beyond the scope of the direct-examination. We do not see that it went farther than was required to bring out the whole truth with reference to the subject of the inquiry. Nor does it appear that the trial judge in commenting upon this testimony made it any stronger than he was warranted in doing. He cautioned the jury that they were to take their own recollection of the testimony, and not that of counsel, or of the court. The criticism of the trial judge, for his definition of voluntary manslaughter, which appears in the fifth and sixth specifications of error, is without justification. The definition which he gave was an ample one. Nor does the suggestion in the seventh assignment, that the court unduly minimized the testimony as to the shots which were fired outside the house, before the shooting occurred inside, seem to us to merit any serious consideration. Upon the former appeal, we expressed the opinion that the interests of justice required fuller instructions to the jury upon the rights of a householder to defend himself against a violent intruder. Upon the last trial the court met this suggestion by dwelling fully upon this phase of the case, and the result is, that counsel for appellant now complain of the extent of. the instruction, and of the detailed illustrations 'that were given. It would seem that in this particular it is difficult to satisfy the requirements of counsel. Their complaint is in this respect, somewhat captious, and is not well founded.

In the ninth assignment, an extract from the charge is presented which is alleged to have been erroneous. Wherein it was incorrect does not appear. . It was merely a recital of the substance of the testimony of two of the witnesses. This evidence was properly a subject of argument for the jury, but it presents no question of law which properly calls for consideration upon our part.

Upon the case as a whole, we find that the evidence presented by the Commonwealth, contained the ingredients necessary to constitute murder of the first degree. Beyond this inquiry it is not our duty, or our province to go. We are not to review the facts in order to determine the question of guilt or innocence. That was for the jury. Appellant has had the benefit of a second trial, very carefully conducted, and has been afforded full opportunity to present the facts upon which he relied, as a defense. His counsel have been untiring in his behalf, and have exerted themselves with a zeal that has gone to the extreme. limit, in invoking the aid of. every possible legal position which they deemed might be of advantage to the defendant. The microscopic scrutiny of the record by counsel for appellant has not resulted in presenting to us anything which we feel can fairly be regarded as erroneous in the trial of the case.

It remains therefore but to say, that the judgment is affirmed, and to direct that the record be remitted to the court below, for the purpose of. execution,-