Commonwealth v. Dennery , 259 Pa. 223 ( 1917 )

Opinion by

Mr. Justice Walling,

This is an appeal by the defendant from the judgment on conviction of murder of the first degree. We have carefully examined all of the assignments of error and the entire record and find no reason to disturb the judgment. The case was well tried by court and counsel and the verdict is supported by abundant evidence.

Conceding that defendant returned to Clearfield for a short time on the night of the homicide and later gave his correct name in the adjoining county, the court could not instruct the jury that as matter of law such facts rebutted any inference that defendant fled to avoid arrest. The statement made by the witness, Shade, just as the robbers departed was properly admitted as part of the res gestee. The fact that the deceased had accused defendant of criminal offenses was admissible on the question of motive, as it tended to show ill feeling between them. A man would naturally hate one who had accused him of attempting to commit an infamous crime. This evidence merely went to the extent of showing that the deceased had made such an accusation against defendant and for that purpose it was competent. See Commonwealth v. Andrews, 234 Pa. 597. As Howies was not resisting the robbers, his murder was such as might suggest some other motive, hence it was proper for the Commonwealth to prove any facts naturally tending to show the defendant’s prior hostility to the deceased. The evidence did not establish defendant’s guilt of an independent crime and was not admissible for that purpose : Commonwealth v. Haines, 257 Pa. 289.

The charge was comprehensive and accurate, embracing the important features for and against the defendant ;, and was fair and adequate. The court is not required to call the jury’s attention to every item of evidence, and it is no objection to a charge that something more might properly have been added.

“It is not possible, nor even desirable that the judge should refer to and emphasize every item of evidence on both sides in a way that the counsel would consider adequate. In doing so he would run much risk of coming to speak as an advocate rather than a judge. Nor is he required to go over all the evidence on any particular point every time he refers to the point in the course of his charge. It is enough if he gives to the jury a general review of the evidence on the one side and the other, which fairly and adequately presents the respective con■tentions of the parties, with enough reference to the items of evidence to assist the jury in recalling it as a substantial whole, and to appreciate its bearing”': Commonwealth v. Kaiser, 184 Pa. 493, 499. It was not legal error for the court to say to the jury that, “It would be a disgrace to the administration of the law if any considerable number of innocent men were ever convicted and it would be equally a disgrace if any large number of guilty men escaped.” In view of the evidence tending to establish a conspiracy between the defendants, and also of that tending to show that three men actually committed the robbery, evidence of the conviction and sentence of the other defendants was proper for the consideration of the jury in this case.

There was a John Rodkey residing in Houtzdale Borough, and also a John Rodkey residing about two miles from the borough, in an adjoining township. The borough was the post office of both. John Rodkey, of Houtzdale, was drawn as a juror and the postal authorities delivered the summons to the one residing in the township. He appeared as a juror and on his voir dire gave his correct residence as above stated. He was accepted and served as a juror in this case. There was no fraud or impersonation. Conceding that the summons was intended for the other John Rodkey, it was merely such an irregularity as was cured by the statute and affords no ground for setting aside the verdict. See Commonwealth v. Potts, 241 Pa. 325.

The assignments of error are all overruled, the judgment is affirmed and the record is remitted for the purpose of execution.