McClain v. Commonwealth , 110 Pa. 263 ( 1885 )

Mr. Justice Paxson

delivered the opinion of the court, June 4th, 1885.

The plaintiff in error was convicted in the court below iff murder of the first degree, and has removed the record into this court by a writ of error for review. The first assignment is that “ The ingredients of murder in the first degree do not exist in this case.”

It was urged in support of this proposition that no motive existed for the killing; that the deceased was unknown to the plaintiff, and that the evidence disclosed neither malice nor premeditation.

The killing took place in the evening in the vicinity of a camp-meeting. The plaintiff armed himself with a butcher knife, which he purchased on his way to the grounds. That he intended to use it there for some purpose is only too apparent from the circumstances attending its purchase. It is equally clear that he designed an unlawful use of it. That he did so use it the evidence and the verdict of the jury establish. That the plaintiff was probably bent on mischief is shown by his whole conduct on that occasion. He is found, without any provocation, assaulting a half-intoxicated boy, who was crying because he had lost a dollar, and when the boy’s brother interfered, not by blows, but by words, the plaintiff knocked him down. During a portion of the time he was exhibiting his knife in a way that called for remonstrance from persons present. Finally he stabbed the deceased to the heart without any known provocation. It was a wanton, brutal act to which the plaintiff was evidently “moved and instigated by the devil”; the result, perhaps of a malicious design to kill some one, but with no especial malice against the particular individual who became his victim. The ease comes precisely within the ruling of Commonwealth v. Drum, 8 P. F. S., 9, where it was said by Justice Agbew: “The distinguishing criterion of murder is malice aforethought. But it is not malice in its ordinary understanding alone, a particular ill will, a spite or a grudge. Malice is a legal term, implying much more. It comprehends not only a particular ill will, but every case where there is wickedness of disposition, hardness of heart,' cruely, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.”

The intent to take life may be inferred from the savage nature of the attack; the weapon employed, and the character of the wound. It was the assault of a ruffian and aimed with deadly skill.

The jury were properly instructed upon the question of intoxication as bearing upon the degree of crime, to which instructions no exception was taken, and we cannot say under all the circumstances of the case that the elements of murder of the •first degree are not to be found in it.

The prisoner’s first point (see second assignment) might well have been refused because it was vague and uncertain. The court was asked to charge : “ That the entire absence of motive on the part of the prisoner for killing, in the absence of conclusive proof of a premeditated killing, should raise a reasonable doubt in his behalf.” The doubt referred to in this point indicates nothing specific. A doubt of what? of the killing or of the degree of the offence? The learned judge evidently saw the obscurity of the point when he answered it as follows: “We affirm the point if the jury find from the evidence that there was an entire absence of motive so far as a verdict of murder in the first degree is concerned, but it should not raise a doubt as to his being guilty of murder in the second degree.” We find no fault with this answer.

The third assignment is without merit. The court expressed the opinion that there was nothing in the case to reduce the offence to the degree of manslaughter. It was but an opinion which the court had a right to express, which was -warranted by the evidence, and was neither given nor intended as a binding instruction. It did not prevent the jury from rendering a verdict for the lesser offence if they believed the evidence justified it.

Nor do we see any serious error in the cross-examination of the witness John Rogers, referred to in the fourth assignment. The witness had been called on behalf of the prisoner to prove that the latter had been drinking on the afternoon of and previous to the murder. The object of this was to create the impression that he was so far under the influence of liquor as to reduce the grade of the offence. It was competent; upon cross-examination to show the prisoner’s condition at the time, and what he did, what he said, and how he behaved. These were circumstances to show that condition, and thus rebut the theory put forth for the defence. The court admitted the evidence for this purpose and we cannot say it was error.

The fifth assignment relates to the ruling of the court in regard to the prisoner’s confession. The confession was admitted in evidence under objection. The next morning, the learned judge, being at least doubtful as to its admissibility, expunged it from the record, forbade-the counsel to refer to it in their speeches, and instructed the jury to disregard it. The doubt in the mind of the court was caused by a dictum of Chief Justice Gibson, in Com. v. Mosler, 4 Barr, 264, in which that learned jurist said that a confession in reply to a question which assumes the guilt of a prisoner is not admissible. No such point was decided in that case, and the remark referred to wras solely for the purpose of illustration as the opinion show's. That it is true in a qualified sense may be admitted; if it amounts to an unfair advantage so as to entrap a prisoner, it may be little better as a confession than one obtained by any other undue influence. But we see nothing in the question put by the witness F. A. Means that is obnoxious to such an objection. Means testified: “ Then I asked him (the prisoner) how it came that you killed that fellow? ” It would be straining a point to say that this question was unfair, or calculated to entrap the prisoner. It differs in form, but not in substance, from the question, did you kill him, and how did it come that you did so ?

The prisoner now complains that the confession having been subsequently ruled out, he was prevented from explaining the transaction. We see no merit in this. The confession was excluded because it had been objected to. There was nothing to prevent a full cross-examination as to all that occurred when the confession was made, and the withdrawal of the objection would have reinstated the testimony.

We need not discuss the effect of introducing such testimony when incompetent, in a capital case, and subsequently withdrawing it from the jury. It might in some instances be very damaging to a prisoner, especially where it involved a confession. But we hold that the testimony in this case was Competent and rightly admitted; the error was in striking it out. The learned judge came to this conclusion finally on the motion for a new trial. It was expunged out of an abundance of caution and a tender regard for human life. The embarrassment upon this point arises solely out of the prisoner’s objection to the evidence and of this he has no just ground to complain.

The sixth assignment does not need discussion. The refusal of the court below to grant a new trial is not assignable for error, even where there is after discovered evidence to contradict a juror’s statement on his voir dire as to his competency to sit as a juror in the case. Aside from this it involved a question of fact, which the court below was alone competent to decide.

The judgment is affirmed and it is .now ordered that the record be remitted to the Oyer and Terminer of Mifflin county for the purpose of execution.