Commonwealth v. McMurray , 198 Pa. 51 ( 1901 )

Opinion by

Mb. Justice Mitchell,

Appellant at about five o’clock in the afternoon went to the house of Rudge, asked for him, and on his coming to the door, after a very brief conversation, without any altercation whatever, drew a revolver and shot him. These facts were not only proved by the commonwealth but testified to by the appellant himself on the witness stand. If anything can ever be said to be admitted at a trial these facts were admitted in this case.

The commonwealth then proved that appellant had been employed by a coal mining company but had not been working for several weeks on account of a broken arm; that Rudge was his foreman while at that work; and that appellant had sought Rudge earlier in the day, with the object of getting back his job. The prosecution then gave evidence of threats on the same day by appellant to shoot Rudge if he did not get his job back; of two efforts to borrow a revolver, and finally the purchase of one, and within a few minutes thereafter the killing with it. On this evidence the commonwealth pressed for a verdict of murder of the first degree.

The defense was intoxication, and in support of it testimony was given of the quantity of whisky drunk by appellant on that day and its effect upon him.

This was practically the whole case. On the undisputed facts it was murder, and the only real issue was the degree of the crime under our statute.

The main burden of the assignments of error is that the judge several times referred to the “ admissions of counsel ” that defendant was guilty of “ at least murder of the second degree; ” and a very earnest argument is presented, first that no such admissions were made, secondly, that even if they had been made, the jury could not find a verdict on them but must base it exclusively on the evidence.

The admissions to which the judge referred were admissions of facts from which the law drew the inexorable conclusion of murder. This is apparent at every point in the charge where reference is made to admissions. It is perhaps most concisely expressed in the part complained of in the sixth assignment, “ You will perceive that we have that which demands and requires the admission of counsel for the defendant that this man is guilty of at least murder of the second degree.” That is, there were the facts proved by the commonwealth, undisputed, conceded, admitted and sworn to by defendant himself from which the law sanctioned but one conclusion, that the prisoner was guilty of at least murder of the second degree. The distinction sought to be set up between an admission of guilt “ at least ” and “ at most ” of second degree has no substance. The legal inference from the facts being murder, it must be “ at least ” of the second degree for that is the lowest grade. The facts as stated by defendant conclusively negatived all idea of manslaughter, and there was no evidence on which counsel could found any claim that the jury had the right (though they might have the power) to render such a verdict. The direction of the bullet was not even a scintilla of evidence of a struggle in opposition to the direct testimony to the contrary by prisoner himself and his victim’s wife. The charge of the judge on that subject was a correct statement of the law, and to the extent that it seemed to countenance the possibility of a verdict of manslaughter was more favorable to the prisoner 'than he could have demanded. It would not have been error to omit it entirely : Com. v. Sheets, 197 Pa. 69. But there being nothing on which a claim for a verdict of manslaughter could be sustained, there could have been no admission “ at most ” of second degree. That was not a subject of admission by the prisoner or his counsel, because guilt “ at most ” would be murder of the first degree, for which the commonwealth was contending and which the prisoner was resisting. His admission of the facts therefore was an admission of what the law conclusively said was “ at least ” murder of the second degree, and the judge . was entirely accurate in so describing it.

The second branch of appellant’s argument that admissions of counsel, even if made, could not be taken by the jury as the basis of a verdict is not tenable. The facts as already said were not only admitted but proved, but even without this, admissions of fact are evidence. Greenleaf devotes two chapters to this subject: 1 Greenleaf on Evidence, pt. 2, chs. 11, 12. Counsel represent their client and their admissions are prima facie his admissions. Certainly so even in criminal cases when made in his presence and to the jury. “ In trials for felony, admissions of fact which the government is bound to prove are not permitted unless made at the trial in open court by the prisoner or his counsel: ” 3 Greenleaf on Evidence, sec. 39.

The cases cited by appellant as to the fixing of the degree of the crime by the jury do not affect this case. In Jones v. Com., 75 Pa. 40-3, there was a plea of guilty and the court below found the murder to have been of the first degree. This court regarding the proof of premeditation as not beyond reasonable doubt, reduced the judgment to the second decree. In Rhodes v. Com., 48 Pa. 396, and Lane v. Com., 59 Pa. 371, the court gave binding instructions that the verdict must be for first degree or not guilty. There was nothing of the kind in the present case. On the contrary the jury were told in the most explicit terms that there were four verdicts, any one of which they might render, to wit: not guilty, or guilty of manslaughter, of murder of the second degree or of the first degree, and in the choice among these four, they were left entirely free to exercise their own judgment.

Appellant further complains that his sixth, ninth, tenth and eleventh points were affirmed, but with qualifications which lessened their force. There is no merit in this claim. A judge is not bound to charge the jury in the exact language of the point, but may choose his own words, and if the point affirmed without qualification would be likely to give the jury an erroneous impression, it is his duty to add such explanations or qualifications as will correct such tendency. “Points even though taken verbatim from the decisions of this court cannot always be properly answered by a simple affirmation. However accurately and carefully stated in their connection and applied to the case under discussion, they may when taken as detached sentences and applied to different circumstances convey erroneous ideas, especially to unlearned jurors: ” Com. v. McManus, 143 Pa. 64. See also Kroegher v. McConway Co., 149 Pa. 444, Walbert v. Trexler, 156 Pa. 112, Cosgrove v. Cummings, 190 Pa. 525, and Carey v. Buckley, 192 Pa. 276. The appellant’s points on the subject of intoxication might have tended to lead or confirm the jury in the popular error that a drunken man is not responsible for crime. In view of this tendency the qualifications added by the judge were entirely correct and appropriate. They put before the jury the exact bearing and limits of the points as rules of law. The threats by the prisoner, his repeatedly seeking the deceased, and his continued drinking up to the killing, were consistent with the view that he had formed the design to kill and was nerving himself up to its execution. This was the claim of the commonwealth, and it was proper that the judge should present it with the others to the jury.

The remaining assignment of error to the admission in rebuttal of the commonwealth’s testimony as to the prisoner’s condition of sobriety previous to the killing cannot be sustained. The degree of the prisoner’s intoxication at the time and shortly previous to the killing was the hinge of the case, and the commonwealth could not be prevented from showing it in her own way, though the defense may have already given the same or closely similar evidence on the same point.

We find no error in the charge. It was a careful presentation of the whole case in its several aspects. It stated the law clearly and accurately in terms tending, it is true, to lead the jury to do their duty in the impartial and unflinching administration of justice, and for that it is to be commended. But it left them distinctly free to exercise all their powers upon their own judgment, and infringed no right nor overlooked any safeguard of the prisoner. The result was not due to the judge but to the relentless logic of the facts.

The judgment is affirmed and the record remitted to the court below for purposes of execution.