Commonwealth v. Welch , 291 Pa. 40 ( 1927 )

Argued September 26, 1927. A recital of the revolting details of this crime is quite unnecessary. Defendant was found guilty of murder of the first degree and the penalty was fixed as death. In compliance with the mandate of the Act of February 15, 1870, P. L. 15, section 2, we have read the entire record and have found to be present all of the ingredients necessary to sustain the jury's finding.

The only criticism of the trial made by appellant's counsel is that the charge of the court took away from the jury its right or privilege to bring in a verdict of second degree murder. Three parts of the charge are pointed to as sustaining this position; they will be found bracketed in the portion of the charge printed in the reporter's notes. The gravamen of appellant's complaint is that the trial judge stated the defendant would be guilty of murder in the first degree if the jury found certain facts, the contention apparently being that the statement by the court that a specified state of facts constitutes murder of the first degree is equivalent to a direction to bring in a verdict of first degree if those facts are actually found. It is, of course, the function of the jury, under the plain words of the 74th section of the Act of 1860 to fix the degree of guilt (Com. v. Frucci, 216 Pa. 84; Com. v. Ferko, 269 Pa. 39), but in disposing of a similar argument to that made here in Com. v. Brue, 284 Pa. 294, we said: "It is proper that the trial judge should instruct the jury that if a certain state of facts is established, it constitutes murder of the first degree, provided he leaves them free to determine the degree." The cases of Com. v. Frucci and Com. v. Ferko, do not rule the one at bar, as appellant's counsel contend, for the reasons pointed out in Com. v. McCloskey, 273 Pa. 456. The charge must be read as a whole and the excerpts taken therefrom must be read in connection with the context (Com. v. Winter,289 Pa. 284); when this is done in the present case there can be no room for doubt that the jury understood the verdicts they could bring in though they were convinced the facts existed which as a matter of law constitute murder of the first degree, as the court below stated. At the opening and closing of the charge the court instructed definitely and distinctly as to the four verdicts, any one of which the jury might return; in the course of his charge, he said: "I will say to you again, of course, we are considering the other degrees, second degree murder and voluntary manslaughter, and it would be proper for you to consider this evidence here that we have just commented upon and the other evidence as bearing upon these degrees of guilt. I don't mean to convey to the jury that I am usurping the function of the jury. This is entirely for the jury, not the court. . . . . . You consider these different degrees of guilt which you might believe you can find from this evidence."

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