author: Mr. Justice Green

text:
    Nevling versus Commonwealth.
    1. It is the duty of the Commonwealth in a criminal case to prove everything necessary to constitute the crime fully and clearly to the satisfaction of the jury. If the Commonwealth fails to make out any of the necessary parts of the crime, the jury must acquit; or if the evidence after it is all heard by the jury leaves the question of guilt in doubt, so that it is difficult to determine, that doubt must work the acquittal of the defendant. The doubt must, however, be a reasonable one, and jurymen cannot doubt as jurymen what they would believe as men.
    2. On a trial for murder, where the defence of insanity, at the time of the commission of the crime, was set up," the court stated to the jury that Í lie presumption was in favor of sanity and that the burden of proof was upon the defendant to overcome that presumption. He then enumerated the various grades of tmsoundness of mind and the causes from which it might flow, adding as follows: ‘‘However it may have originated, when it is shown to exist to such an extent as to destroy or seriously impair one’s judgment or consciousness of right or wrong, it is a defence to any criminal charge. Whenever a person has sufficient mental capacity to distinguish right from wrong, to understand and appreciate the character of what he does, and to judge of probable consequences of his acts, the law holds him criminally responsible for them, although he may in some respects be weak-minded . . . But if the unsoundness of mind goes to that extent of destroying his capacity to distinguish right from wrong, and disabling him from understanding the nature and character of his acts and their probable and ordinary consequences, the law will not hold him criminally responsible for them.” Held, that the instruction was not erroneous.
    3. Where, on a trial for murder, the contention of the defendant is that ho has been guilty of murder in the second degree only, the court, having once in its charge clearly defined the grades of that offence, is not bound to repeat said instruction in charging as to other features of the case.
    4. On a trial for murder the defence set up was intoxication on the part of the defendant at the time of the perpetration of the crime. The court in its charge reviewed the facts at length, stated correctly the various degrees of the offence'of murder, explained to the jury with relation to the particular facts, in what condition they must find the prisoner to have been in order to reduce the grade of his offence to the second degree, and concluded thus.: “In this case the only question arising and the only one disputed by defendant’s counsel, is whether the defendant was in such a condition as to be capable to form a design to kill, and did kill in pursuance of that design.” Held, that this instruction was not erroneous.
    5. In said case defendant requested the court to charge that if the evidence should appear to show intelligence on defendant’s part, and that he was watchful and capable of determining his purpose of committing the murder and of selecting the means for its accomplishment, and that, he also had ample time for reflection and seemed to act in his right mind and from a conscious purpose, still it did not necessarily follow that he was in such a state of mind as would authorize his conviction of murder in the first degree. The court answered the point by saying that it seemed more like the statement of an argument than of a legal principle. That it was no doubt true that aman might seem to be intelligent and lo be perfectly conscious of what he was doing, when in reality he was not so. That appearances were often deceptive, but. that if the jury found that defendant had understanding, was conscious of what he was doing, was capable of distinguishing between right and wrong, had time to'meditate and did meditate upon the purpose of committing the murder, and then proceeded to perpetrate the crime, they must find him guilty of murder in the first degree. Held, that this instruction was not erroneous.
    6. In said case defendant requested the court to charge that before
    defendant could be convicted of murder in the first degree the evidence must show that at the time the crime was contrived and executed, defendant possessed that self-determining power which in a sane mind renders ¡(¿conscious of the real nature of its own purposes and capable of resisting wrong desires. The court affirmed the point, provided the jury were satisfied that the facts therein stated were true, adding: “The ordinary
    presumption of law concerning a human being is that he was a reasonable creature at the time he perpetrated the act, and that he was not ignorant of the consequences of it, but that he was conscious that he was doing wrong and knew the consequences of that act.” Held, that the answer, though somewhat obscure, was not erroneous.
    7. In said case the defendant requested the court to charge that if this self-governing power was-wanting in defendant, whether it was caused by insanity, gross intoxication or other controlling influence, it could not be truthfully said that his mind was fully conscious of its own purposes, and deliberated or premeditated in the sense of the act describing murder in the first, degree. The court affirmed the point, adding that, “if the impulse which impelled defendant to do the deed was an impulse actuated by a bad and depraved mind and a heart fatally bent on mischief, then it would be murder. That an impulse to kill, resulting from the wickedness and depravity of the heart, was the very essence of murder, but that if the impulse to kill resulted from unsoundness of mind the act would not be murder.” Held, that the answer was not erroneous.
    8. In said case evidence was offered by the defendant to show the uttering of threats by the murdered man against defendant two days prior to the perpetration of the crime. It was, however, neither averred nor proved that said threats had been communicated to defendant. Held, that said threats were not part of the res gestas nor relevant to the point at issue, and that therefore the evidence was properly excluded.
    9. In such case as is detailed above the opinions of persons who had frequently seen defendant intoxicated, but not on the day of the murder, as to his mental condition when in that state, are not admissible in evidénce on his behalf.
    10. The requisites of a charge to the jury in a murder case, where the defences of insanity and intoxication are set up, discussed and determined.
    11. Jones ¶. Commonwealth, 36 P. P. Smith, 403, explained and distinguished.
    June 13th 1881. Before Mercur, Gordon, Trunkey, Stek- • rett and Green, JJ. Sharswood, O. J., and Paxson, J., absent.
    Error to the Court of Oyer and Terminer of Clearfield, coimty: Of May Term, 1881, No. 68.
    Indictment of John A. Nevling for the murder of Samuel Pennington. Plea, not guilty. ■
    On the trial, before Oryis, A. L. J., and Holt and Ogden, A. JJ., there was no dispute as to the fact of the murder, but the question was whether the prisoner was guilty of murder in the first, or in the second degree. The defence was that by reason of intoxication at the time of, and previous to the killing, the prisoner was in such a condition that lie was not capable of forming a design to kill, deliberately and with premeditation. The material facts were these: The prisoner was about thirty years of age, of very intemperate habits, unmarried, and lived in a shanty about a mile from Houtzdale. When sober, he was peaceable, but the reverse when drunk. During the 16th day of February 1880, he drank a large quantity of whiskey, and became very drunk before evening. About 8 o’clock p. m. he was in a store in Houtzdale, when Samuel Pennington, a young man nineteen years of age, came in, and some quarrelsome worda ensued, which resulted in a fight on the street, in front of tha store, during which Pennington struck Nevling on the head with a billy, threw him to the ground and beat him severely. Upon Nevling’s calling for assistance, Pennington released him, whereupon Nevling got up and said to Pennington: “ Sammy, you have done that nicely; let us shake hands.” Pennington shook hands with him and then left. Another witness testified that Nevling said: “ You whipped me this time, will you fight me again?” Pennington said he would. Several witnesses testified that soon afterwards Nevling made threats that “ he would shoot the damned son-of-a-bitch, and didn’t care a God damn if he would hang on the gallows for it.” He drank more whiskey that evening, and obtained a pint bottle of whiskey, which he took home with him. To one witness whom he met he showed the wound on his head, and showed the pint bott}e full of whiskey, which he said he was going to take home and drink the .next morning, and then he would take his'gun and go to town and shoot the damned son-of-a-bitch who hit him. lie arrived home very drunk and went to bed about eleven o’clock, without taking any supper but a cup of coffee; his brother, who occupied a separate bed, testified that he was restless ; “ hollering and talking almost all night, altogether about his head, and sometimes groaning, and so on.” He remained in bed until after eight o’clock the next morning, ate no breakfast, but, complaining of his head, drank a pint of whiskey and also a half-pint of alcohol, in which was dissolved about an ounce of gum camphor, and then started to town, taking his gun with him. On his way, he stopped at a place to get some tobacco. A witness testified: “He asked me for a smoke; I gave him a cigar; he put the gun down and said : ‘ I have a load in this gun to shoot the----that hit me last night with a billy.’ Says I to him : ‘ Don’t you know you will hang if you shoot a man ?’ Says he, ‘ I don’t care a God damn; I am going to shoot- the man.’ Upon these words he left.”
    He then proceeded to Houtzdale, where the streets were crowded, it being election day. He paraded, staggering, for a considerable time, and attracted much attention. He drank more whiskey in Houtzdale, from a pint bottle which he had. After travelling about for some time, he met Pennington on the street, walking aloue; Pennington was sober; Nev-ling was very drunk, but one or more witnesses testified that he seemed to have selt-control. The men passed each other, and, at the distance of about twenty-nine feet from Pennington, Nevling turned, raised the gun, and fired ; the charge, consisting of several buckshot, took effect in Pennington’s back, near the shoulder-blade. He reeled and fell, placing one hand, as he fell, to his hip pocket, from which a loaded revolver was protruding. Pennington lingered until April 18th 1880, when he died from the effect of his wounds.
    Almost immediately after the shooting, Nevling was arrested by a citizen, George Wooden, amid great excitement. Wooden testified that Nevling said : “I done the deed and I’m willing to submit to anything, but I want yon to protect me, I don’t want you to let them hurt me.” Wooden took him to a room in a hotel, and locked him up till a train came, which was stopped back of the house, and Nevling was put on the train through the back door by a constable, without letting the crowd in front know of it, as they were clamorous about lynching him. Another witness testified that Nevling said, while being handcuffed in the hotel room, that “ he had been looking for this for some time; that he was bound to hang any way, and might as well have it first as last,” or words to that effect, but, “ he didn’t want to be hung right off, as he wanted two hours to prepare to meet his God.”
    There was evidence that several of the prisoner’s maternal uncles and aunts had been more or less insane, and that some of his relations on his father’s side were addicted to intemperance.
    The defendant’s counsel offered to prove that on February 14, two days before the murder, after Nevling, Pennington and the witness had been drinking together, Pennington made threats against Nevling, saying : “ He had it in him (referring to himself), and he would give it to him some time again.” Objected to as not being part of the res gestee, and because it was not offered to prove that Nevling had knowledge of such threats; objection sustained; exception. (9th assignment of error.)
    The following questions, put by defendant’s counsel to witnesses, were objected to, and excluded, viz.: Q. From Nev-ling’s manner in your office, and from what he said and did, do you think he was rational and knew what he was talking about? (10th assignment.) Q..Does Nevling, when drunk, in your judgment, and from your knowledge of the man as you have detailed it, possess the power to control himself and resist wrong impulses? (11th assignment.) Q. From your knowledge, derived from having seen the prisoner frequently in a state of intoxication, is he, in your opinion, a sane or insane man when in that condition ? (12th assignment.)
    . Defendant’s counsel presented the following points:
    2. “ If the evidence should appear to show intelligence on the part of the defendant, and that lie was watchful and capable of determining his purpose of shooting Pennington, and of selecting the means of its accomplishment, and that the defendant had ample time for reflection and seemed to act in his right mind, and from a conscious purpose ; still it does not necessarily follow that the defendant was in such a state of mind as would authorize his conviction of murder in the first degree.” Answer. “ This seems more a statement of an argument than of a legal principle. It is no doubt true that a man may seem to be intelligent and to be perfectly conscious of what he is doing, and therefore responsible for liis acts, when in reality he is not so. Appearances are often deceptive. But if you find as a fact that he had understanding, that he was conscious of what he was doing, that he contemplated the consequences of his act, and was capable of distinguishing between right and wrong; that he had time to meditate, and did meditate upon the purpose of taking Pennington’s life, and then proceeded to take his life, we say to you that this would constitute murder in the first degree, and it would be your duty, if you find such a state of facts, to render such a verdict.” (6th assignment.)

      3. “ Before defendant can be convicted of murder in the first degree the evidence should show that he possessed, when the shooting of Pennington by him was contrived and executed, that self-determining power which in a sane mind renders it conscious of the real nature of its own purposes and capable of resisting wrong impulses.” Answer. “We affirm this point, gentlemen of the jury, with this qualification : that you must be satisfied from all of the evidence in the case that the facts stated in this point are true. The ordinaiy presumption of law concerning a human being is that lie was a reasonable creature at the time he perpetrated the act, and that he was not ignorant of the consequences of it, but that he was conscious that he was doing wrong and knew the consequences of that act.” (7th assignment.)
    4. “ If this self-governing power was wanting in defendant, whether it was caused by insanity, gross intoxication, or other controlling influence, it cannot be said truthfully that his mind was fully conscious of its own purposes and deliberated or premeditated in the sense of the act describing murder in the first degree.” Answer. “ We affirm this point, with this qualification, that if the impulse that impelled him to do this deed was an impulse actuated by a bad and depraved mind and a heart fatally bent on mischief, then it' would be murder. An impulse to kill, resulting from the wickedness and depravity of the heart, is the very essence of murder, but if the impulse to kill resuited from unsoundness of mind the act would not be murder, and the actor would not be held responsible by the law.” (8th assignment.)
    The court charged the jury, inter alia, as follows:
    “ The legal presumption of innocence stands until it is overthrown by proof. The commonwealth, in all cases, must prove' everything that is necessary to constitute the crime; prove it fully and clearly to the satisfaction of the jury, beyond a reasonable doubt. If the commonwealth fails to make out any of the necessary parts of the crime, the result of it is, that the jury must acquit the defendant; or if the evidence, after it is all heard by the jury, leaves the question of the guilt of the prisoner in doubt, so that it is difficult to determine whether he is guilty or not, that doubt must work the acquittal of the defendant. The law says it is better that ninety and nine guilty persons should escape, than that one innocent person should be unjustly convicted and punished. The doubt that can work the acquittal of a prisoner must be a reasonable doubt; such a doubt as would make a man of ordinary intelligence and prudence hesitate before coming to a conclusion. If such a doubt exists, of course it must work the acquittal of the prisoner at the bar. If yon, under your oaths, and after an examination of all the evidence in the case,, find that such a doubt exists as to the guilt of the defendant, it must enure to his benefit, and your verdict should be not guilty. [But a jury cannot justify a verdict of acquittal upon any pretended or fancied doubt; it must be a real doubt, a reasonable doubt. You can not donut as jurymen while you believe as men. 1 have heard men who have sat on juries in criminal cases, after they had rendered a verdict of not guilty, say, that they believed the man was guilty, but the Commonwealth had not proved it. This is a gieat error, for if you believe a man is guilty solely from the evidence, the Commonwealth has proved it; for if the evidence satisfied them as men that the prisoner was guilty, it is proved ; and it is their duty as jurors to convict; it is what the law requires. Whenever all of the evidence is of such a character as to convince the intellect and conscience of men of a fact, then that fact is proved. Proof is that degree and quantity of evidence that produces conviction.] (First assignment of error.)
    “The law presumes all persons above the age of fourteen years to have ordinary mental capacity, and to be capable of judging of the nature and character of their acts, and of intending the ordinary and necessary consequences of what they do. This presumption is not, however, conclusive. It may be overthrown by evidence, that any particular person is an exception to the general rule. When idiocy, lunacy, insanity, or any other form of mental incapacity is alleged as an excuse for a crime, the burden of proof is upon the defendant to show that such infirmity actually exists. The nusouudness of mind may be general, reaching all subjects, when it is called idiocy, or general insanity ; or it may extend only to particular subjects, when it is called monomania.’ It may be continuous, or it may he intermittent, in which latter case, it. generally is called lunacy. These various forms of unsoundness of mind in some eases may have existed from infancy; in other cases, may have been subsequently produced by physical injuries, disease, long continued dissipation, and many other causes not necessary to enumerate. [But, however, it may have originated, when it is shown to exist to such an extent as to destroy or seriously impair one’s judgment or consciousness of right or wrong, it is a defence to any criminal charge. Whenever a person has sufficient mental capacity to distinguish right from wrong, to understand and appreciate the nature and character of what he does, and to jndge of probable consequences of his acts, the law holds him criminally responsible for them, although he may, in some respects, be weak minded; that is, of less than the average mental capacity. But if the unsoundness of mind goes to that extent of destroying his capacity to distinguish right from wrong, and disabling him from understanding the nature aud character of his acts, and their probable and ordinary consequences, the law will not hold him criminally responsible for them.] (Second assignment of error.)
    [••It is alleged, on the part of the defense, that Nevling went t.o bod about eleven o’clock that night without taking any supper but a cup of coffee ; that he remained in bed until after eight o’clock the next morning, when he got up, ate no breakfast, but he drank a pint of wdiiskey aud a half-pint of alcohol, in ’which was dissolved an ounce of gum camphor, and 'then started to town, taking his gun with him, with which he after-wards fired the fatal shot.] (Third assignment of error.)
    ['• If, for a lime previous to the killing, he was at himself and knew what he was saying and doing, and contemplated the taking of life, aud if he was capable of discerning between right and wrong, and then willfully put himself under the influence of liquor or drugs, to stupefy his senses in order to carry out that design, he would in law be responsible for the act, and it would be the duty of the jury to convict him of murder in the first degree, but if he was so much intoxicated at the time he formed the design, or had the impulse to kill, as to be unconscious of what he was doing, and of the consequences which would follow, and continued in that condition until lie carried his design or impulse into execution, he would not be criminally responsible for his act.] (Fourth assignment of error.)
    “If you find, from all of the evidence in this case, that he made these threats to kill the deceased at a time when he was in such condition as not to know what he was doing, but after-wards, when he had recovered his consciousness, he formed the design to kill and carried it into execution, he would be responsible for the consequences of his act. You have also, bearing upon this subject, the condition of his mind immediately after he had bred the fatal shot; what he said and what he did. You remember the evidence what he said about it, and what anxiety he felt to bo protected from the crowd who threatened to lynch him, and why he wanted to be protected ; the fact that he was taken into Wooden’s Hotel away from the crowd, aud all he said there, aud the condition he remained in during the day, while in the custody of the constable, John Malee, aud what he said wheii Malee put his hand-cuffs on him. All of this is proper evidence for you to consider in determining whether he was in such a condition as to know what he had done, aud whether he knew the consequences of his act. If he was in such a condition as to know what he was doing, and knew the consequences of his act, and did it in pursuance of a previously formed determination, then the law says he is guilty of murder in the first degree, but if he did the act without deliberation and premeditation, then he would be guilty of murder in the second degree.
    [“ In this case the only one question arises, and the only one disputed by the defendant’s counsel, is whether the defendant was in such a condition as to be capable to form a design to kill, and did kill in the pursuance of that design.] (Fifth assignment of error.)
    “ If he was capable to form such a design, and killed the deceased deliberately and with premeditation, and was conscious of the consequences of his act, then the law says he was guilty of murder in the first degree, and it will be your duty, under your oaths, to render such a verdict, regardless of the consequences.”
    Yerdict, guilty of murder in the first degree. A motion for a new trial and in arrest of judgment was refused, and sentence of death was pronounced. The prisoner took this writ of error, assigning for error the exclusion of his offers of evidence as above ; the answers to points, and the portions of the charge included within brackets, as above quoted.

      J. B. McEnally, for plaintiff in error.
    The sole question was whether the prisoner was guilty of murder in the first degree or in the second degree. The error pervading the theory on which the court below' tried the case, .and which pervades the charge, is that the prisoner should either be convicted of murder in the first degree or be acquitted. Tints, the court say (fifth assignment): “ In this case the only one question arises, and the only one disputed by the defendant’s counsel is, whether the defendant was in such a condition as to bo capable to form a design to kill, and did kill in pursuance of that design.” The joower to form a design and then follow it up, does not necessarily imply that kind of deliberation .and premeditation which is, under the Act, necessary to constitute' murder in the first degree. All the cases in Pennsylvania defining murder m the first degree use language assuming that the prisoner is sane and capable of premeditation. Such is the case of Commonwealth v. Drum, 8 P. F. Smith 9, upon which, and. kindred cases, the court below based its instructions. If such language is applied to this case it is assuming the very question at issue here, viz.: whether the defendant’s mind was in such a condition that he had capability to form a premeditated intent of murder. There are two elements of the test of responsibility for crime— power of self-consciousness, and power of self-control. A mind may be removed from responsibility of murder in the first de-: gre'e by heat of passion, by intoxication, and by insanity. Intoxication is not an excuse for crime, but if it deprives the intellect of power to think and weigh the nature of the act, it may prevent a conviction of murder iu the first degree: Jones v. Commonwealth, 25 P. F. Smith 403.
    The court below also erred in their statement of the law in other portions of the charge assigned for error; in the answers to points, which were obscure and calculated to mislead the jury ; in the rejection of evidence; and in the general tenor of the charge: Wharton’s Crim. Ev. §§ 1, 72, 73; Penna. 17. 17. Co. v. Perry, 18 R. R. Smith 272, 279. It is possible that even if the court had made no error, the jury might still have found the same .verdict, but we were entitled to correct rulings, and in their absence are now entitled to a reversal.

      J. F. McKenrick, district-attorney (Wm. M. McCullough with him), for the defendant iu error.
    October 3rd 1881.
   Mr. Justice Green

delivered the opinion of the court

The learned counsel for the plaintiff in error candidly admits that his client was guilty of murder, and questions only the propriety of the conviction as to the degree of the crime. As the facts, and the degree of the offense, have been found by a jury, and there was abundant evidence to warrant the finding, we are precluded from considering the sufficiency of the testimony, and are limited to the precise and specific determination of the matters assigned for error.

The case in all its loading features was one of a very simple character and quite free of complicated questions. On the night of February Ifítli 1880, the prisoner and the deceased met at a store in Ilontzdale and after a few words went out on the street, apparently to fight. A brief contest took place, in which Pennington, the deceased, struck Nevling, the defendant, with a billy, and also a few blows with his fist while Nevling was on the ground. Pennington then desisted from further assaults, and' at the instance of the defendant they shook hands. Put on the same evening, to a number of different persons, Nevling made threats that lie would shoot Pennington the next day. The proof of these threats was so conclusive and came from so many different sources, that there was no attempt to contradict or iimpeach it in any manner. Oil the next morning Nevling armed himself with a loaded . gun and went out upon the streets of TIontzdale until lie met Pennington, who approached from an opposite direction and passed Nevling in perfect peace and quietness. No words passed between them, nor was there any demonstration of any kind on the part of Pennington toward the prisoner. Almost immediately after passing Pennington, Nevling turned about, lifted his gun, aimed it at the deceased, fired it off, and shot him in the back, inflicting wounds from which he died. After the shooting the prisoner declared lie liad done just what he intended to do, and expected to hang for it. One witness, Mr. W. H. Patterson, a member of the bar, who was present immediately after the shooting, testified as follows to a declaration made by Nevling in reply to a question put by the witness. “ He said on the night before that Pennington struck him on the head with a billy, and that was the reason that he shot him, and that he well knew that he would hang for it any how, and that he didn’t care.” The uneontradicted testimony disclosed a case in which a previous motive of revenge was shown to exist, threats were made the night before, and repeated the next morning, to shoot the deceased, which were followed by a preparation in accordance with the threats, and the deliberate consummation by the actual perpetration of the crime, in circumstances which were entirely devoid of extenuation or even of provocation. In such a condition of things the ordinary defences against accusations of murder were quite out of the question. An attempt to set up insanity was made, but it failed entirely for want of testimony. The only serious effort that was made on behalf of the defendant, was an endeavor to reduce the grade of the crime from the first to the second degree. This was based upon an allegation that the prisoner was in a condition of gross intoxication at the time of the offence, that he had long been of intemperate habits, and that his mind was in such a condition that, while he was criminally responsible for his act as an act of murder, yet it was not “fully conscious of its own purposes,” and did not deliberate or premeditate in the sense of the-act describing murder in the first degree. It was argued that at the time of the commission of the offence the defendant did not possess “ the self-determining power which, in sane mind, renders it conscious of the real nature of its own purposes and capable of resisting wrong impulses.” The decision of this court in the case of Jones v. Commonwealth, 25 P. F. S. 403, is the basis upon which it was sought to found this defence. An examination of that case, however, shows that the conclusion there reached was based upon the peculiar faqts exhibited by the testimony, and was limited to the inferences which naturally arose from them. As the defendant liad plead guilty it became necessary for the court to determine the degree of the offence,, and this was done upon a consideration of all the facts of the case. The controlling facts are thus indicated in the opinion livered by Chief Justice Agnew: “William S. Jones had been ppon bad terms with his wife, she had “become too intimate with another Jones called Charley. William S. J ones, failing to break off the association, got to drinking hard, and, finally after another quarrel with his wife on the 10th of June 1871 attempted suicide by taking a large quantity of laudanum. Dr. Davis found him lying on a lounge, partly insensible, eyes nearly closed, pupils contracted, and face disclored by congestion. Energetic remedies were used and he was so far restored as to be out of danger, but the effects of the laudanum remained. From this time until the night of the 19 th of June, when he took the life of Mrs. Hughes, his mother-in-law, he was in a constant state of nervous excitement, continued drinking and had bottles of laudanum about his person. Many witnesses describe him as without sense, constantly talking nonsense, wild in appearance, and-incoherent in speech. Some say he acted like a man drinking hard, was intoxicated, and once fell from a horse. Others described him as looking crazy, talking to himself, his hands going, his head thrown back, walking to and fro, throwing his head about, swinging his arms, and wild, nervous and excited. He would jump upon a chair and begin to preach and run off upon Charley Jones and his wife; said he was going to build a tavern on the mountain and a church beside it; claimed all the prop-, erty about, and was evidently much out of the way. These appearances were particularly noticed on the 19th day of June, tho-day of the homicide.” The foregoing facts, together with tho consideration that Jones had been on pleasant terms with his mo1her-in-law, had made no threats against her, and had shot her under a sudden impulse after she had raised a stool, telling him she would level him with it if he did not leave, induced, this court to believe that it was “a matter of grave doubt whether his frame of mind was such that he was capable of deliberation or premeditation.” The facts in the foregoing case were so radically dissimilar to those of the case under consideration, that they constitute no precedent to be now followed. The principles stated in the opinion, which were supposed to be applicable, were presented to the court below, on the trial of Nev-ling, in the form of points, and the answers to these, and certain language in the general charge, constitute the subjects of the principal assignments of error. We proceed to refer to them in their order.

The first assignment complains of a portion of the charge relating to the character of the doubt requisite to justify an acquittal. We see no error even in the selected sentences which . are claimed to be erroneous. When taken in connection with the other comments of the judge on the same subject, not embraced in the specification, it is quite plain that the charge is not obnoxious to the criticism made upon it. The learned 'judge, in immediate precedence to, and in direct connection with, the language complained of, had defined with great care and ¡perfect legal accuracy, the duty of the Commonwealth to establish the prisoner’s guilt, “ by clear and satisfactory evidence beyond a reasonable doubt;” that “the Commonwealth in all eases must prove everything that is necessary to constitute the crime, prove it fully and clearly to the satisfaction of the jury beyond a reasonable doubt. If the Commonwealth fails to make out any of the necessary parts of the crime, the result- of it is, that the jury must acquit the defendant: or if the evidence, after it is all heard by the jury, leaves the question of the guilt of the prisoner in doubt so that it is difficult to determine whether he is guilty or not, the doubt must work the acquittal of the defendant.” The learned judge then proceeded to say that the doubt must be a reasonable one, and that jurymen could not doubt as jurymen what they believed as men. In all this there was no error. It is the familiar language found in the text-hooks and decisions which treat of the subject. The whole language of the judge must be taken, together and we fail entirely to perceive any tendency to mislead the jury, or to lower the grade of proof required to convict.

There was certainly no error in the language complained of in the second assignment. It was a mere general description of the mental capacity which subjects individuals to responsibility for their criminal acts, and of the incapacity which relieves them of that responssbility. It is not alleged that there was any positive error in this portion of the charge, but is rather argued that there was error by implication in leading the jury to suppose that there were but two classes of men, either those wholly sound and therefore responsible, or wholly unsound and therefore entirely irresponsible. We see no such meaning in the language of the judge, and we think what was said was quite pertinent to the case.

There is no merit in the third assignment, and it is not really pressed.

As to the fourth assignment the learned counsel for the plaintiff in error admits that there was no error in what was said by the judge. It was indeed a most favorable presentment of the defendant’s theory. But it is said, as before, that the jury were not herein instructed as to the difference in the grades of the offence. Granting this, it proves nothing as to the erroneous character of this portion of the charge. The judge was not bound to he constantly presenting that 'one view of the ease. It was not an answer to a point, but a part of tbe general charge, and was strictly correct.

The subject-matter of the fifth assignment is the statement by the court in an isolated sentence as to what the question was which was in dispute. The court stated it to be, “ whether the defendant was in such a condition as to be capable to form a design to kill and did kill, in pursuance of that design.” This was said at the end of an extended presentation of that part of the case which related to the condition of the defendant at the time of making the threats, and at the time of the shooting. After referring to the testimony as to the intoxication of the defendant, the court said to the jury : It becomes an important question in the case for you to determine whether or not he was in a condition to know and understand what he was saying and doing when he made these threats.” This was followed by the statement that if the defendant was, so drunk as to be unconscious of the meaning of the threats, they were of no account, but if he knew and understood their meaning, and if he carried them into execution, this would be evidence of deliberation and premeditation. After much further comment on this branch of the case, and with ample reference to the testimony, the judge further said : “ All of this is proper evidence for you to consider in determining whether he was in such a condition as to know what he had done, and whether he knew the consequences of his act. If he was in such a condition as to know what he was doing, and knew the consequences of his act, and did it in pursuance of a previously formed determination, then the law says he is guilty of murder in the first degree, but if he did the act without deliberation and premeditation, then he would be guilty of murder in the second degree.” Immediately following this is the language complained of in the fifth assignment. It seems to us to be a substantial statement of the essence of the controversy. What positions may have been taken in the oral argument of course we cannot tell — we can only deal with the record as we find it. There certainly is no error in anything the court said in presenting this part of the case. Whether there was any error of omission we cannot know except by the points and the answers to them. We fail to see anything in the facts of this case as developed by the testimony, to call for any more refined distinctions as to the defendant’s mental condition, than those which were contained in the charge and answers. The jury were instructed to find a verdict of murder in the second degree if they found the killing was done without deliberation or premeditation, and that was as favorable a presentment of that aspect of the case as the defendant could ask.

There was clearly no error in the sixth assignment. Every thing in the defendants’ second point was affirmed. The added remarks of the judge were entirely correct in every legal sense, and were but a seasonable precaution to be given to the jury in connection with the matter contained in the point. The defendant did not ask in the point for a distinction between the two degrees of murder, and therefore there was no error in not giving it. Pie only asked for an instruction that if the hypothesis of the point were true, he would not necessarily be guilty of murder in the first degree, and that was affirmed. The alternative of the proposition was also stated by court, and stated correctly.

As to the seventh assignment it must be admitted that the answer of the court to the defendant’s third point was obscure. But obscurity is not necessarily error. The only facts stated in the point are those which are essential to conviction, and if these are the facts to which the court referred in the answer, there was not only no error in the answer, but. it was a more emphatic expression in favor of the defendant than the point itself. This indeed is the literal interpretation of the words of the answer. If, however, the judge referred to the implied facts — implied from the negative form, of the point, to wit, that the jury must acquit, or convict of something less than murder in the first degree, if they should find that the defendant did not possess the self-determining power which, in a sane mind, renders it conscious of the real nature of, its own purposes and capable of resisting wrong impulses, then also the answer was correct in a legal sense, and the qualification, while it was unnecessary, did no harm. In either aspect there was no error in the answer.

As to the eighth assignment it is only necessary to say that the defendant’s fourth point was affirmed, and that the qualification added is in exact conformity with the distinction stated by Oh. J. Agnew in the case of Jones v. Commonwealth. In fact the fourth point is a literal copy of one sentence in Judge Agnew’s opinion, and the qualification is a substantial copy of the next sentence. The learned judge of the court below simply followed the example of the chief justice in presenting the qualification in immediate connection with the doctrine. Of course, there was nothing erroneous in what was said, nor any thing tending to mislead.

R inth assignment. In no point of view was it competent to give in evidence the declaration of Pennington to Glasgow on the 14th of February. It was no part of the res gestae, it was' not alleged that the declaration was even communicated to Nevliug, and it was altogether inapt to a defence of mental incapacity. . Had there been any evidence of an affray at the time of shooting and liad the threat, such as it was, been communicated to Nevling, it might have been admissible though of but little real weight in tile case. But in the actual circumstances of this case, it was totally irrelevant, and could have sub-served no proper purpose in the trial of the cause.

Tenth, eleventh and twelfth assignments. The question to Weible was asked to show the actual condition of Nevling just before the shooting. The witness had detailed the circumstances of the conduct and language of the prisoner at his store, and had given his opportunities for knowing the mental condition of the defendant at that time. The fact of impaired mental condition of the prisoner,- amounting to unconsciousness of his purposes, at the time of the shooting, was clearly competent to show by the witness, after proving the pertinent facts which occurred in his presence and hearing, whether sucli unconsciousness then existed. This is matter of every day practice in issues touching the sanity or capacity of persons. The opinion is competent if preceded by proof of actual facts affording opportunities of observation and inference. But the questions to Mr. and Mrs. Scott were entirely different in their character. They did not relate to the prisoner’s actual condition at the time of, or immediately before or after, the offence ; they were purely hypothetical, and they assumed as their basis a state of facts which was altogether disputed. Whether the prisoner was sane or insane when intoxicated was a mere general question, a pure matter of opinion, and the answer to it could not prove any thing as to his actual mental condition at the time of this occurrence. Both the witnesses were permitted to, and did, testify, to any facts within them knowledge as to the conduct and declarations of Nevling when he was intoxicated. Both of them said they did not see him on the day of the shooting, and- of course they did not know whether he was then intoxicated or not. The offer to prove their opinions in such circumstances Was clearly inadmissible.

The thirteenth assignment alleges a general tendency to mislead the jury in the charge. We have read the charge very carefully, and also the testimony delivered on the trial, and we are unable to observe any such tendency. On the contrary, it seems to us to bo a very correct, fair and impartial presentment of the law and the facts of the case. The chief complaint of the defendant under this assignment is that the court did not adequately present, and explain, to the jury the subject of a conviction of murder in the second degree. It is but fair to the court to say that none of the defendant’s points exhibited that question as an alternative, so as to require any special illustration of it. In some of the points it is claimed there could not-be a conviction of murder in the first degree, but the alternative of a conviction in the second degree was not suggested, and therefore, so far as the points are concerned, it does not appear that the distinction now contended for so earnestly was presented to the attention of the court. What may have been said in the oral argument, of course we do not know. So long as there was a chance of acquittal, it may not have been good policy to put in the point the suggestion of a conviction in the second degree as the alternative for a non-conviction in the first degree, but the court below could not be responsible for such omission. The points were properly answered, and the general charge was a correct and fair presentation of the whole case, and hence we cannot reverse.

Judgment affirmed, and it is ordered that the record be remitted to the Court of Oyer and Terminer of Clearfield County for the purpose of execution.


source: Caselaw Access Project

author: Mr. Justice Sterrett

license: Public Domain

text:
    Ettinger versus Commonwealth. Moyer versus Same. Erb versus Same.
    1. Where an aoccompliee to a crime testifies to the circumstances thereof, it is competent for the Commonwealth to verify as far as posible his statement as to the res gestae by the testimony of witnesses who came upon the ground immediately after the occurrence and while the means of verification existed. Nor is it necessary that such corroborative testimony should extend to the whole of the accomplice’s testimony. If it be shown that he has testified truly in some particulars, the jury may infer that he has done so in others.
    2. Where a man at full liberty to speak, and not in the course of a judicial inquiry, is charged with a crime and remains silent, that silence is a circumstance which in certain cases may be submitted to a jury as evi-. dence of guilt.
    3. Where, on a trial for murder, there is evidence to prove motive on the part of the defendant, as well as actual participation in the crime, admissions made by him to the eifect that he was asked to take part in the murder, but declined, promising, however, to say nothing about the matter, are relevant and competent evidence, as they tend to show that the defendant was at any rate an accessory before the fact.
    4. In such case evidence of statements made by the defendant that a fire, alleged by an accomplice to have been kindled by the murderers at the time of the crime in order to conceal the traces thereof, was not accidental, and that he helped to cause said fire, is also admissible.

      5. On a trial for the murder of a woman, in a house where she lived, an accomplice testified that the defendant and others also murdered the ■woman’s husband at the same time and place, and afterwards took and carried away money which was on the premises. Held, that in view of. this testimony, evidence that the defendant knew of the existence of this money, and where it was kept, was admissible in order to show motive for perpetrating the crime.
    June 13th 1881. Before Sharswood, C. J., Mercur, Gurdon, Panson, Trunkey, Sterrett and Green, J J.
    Writs or error to the Court of Oyer and Terminer and General Jail Delivery of Snyder county: Of May Term-1881, Nos. 92, 93, 94.
    Emanuel Ettinger, Jonathan Moyer, Israel Erb, Uriah Moyer and Ellen Moyer were indicted for the murder of Gretchen Efintzler. Uriah Moyer and Ellen Moyer were not arrested. Separate trials were granted to eaeli of the prisoners,
    all of whom pleaded not guilty. Each of the prisoners was found guilty of murder in the first degree, and they severally and respectively removed the records to this court by writ of error. The only specifications of error in each case were to the rulings of the court below upon the admissibility of certain evidence offered by the Commonwealth and objected to by counsel for the prisoners. The voluminous testimony in each case, as reported by the stenographer, was brought up with tile records, but was not printed in full in the paper books. Portions of the testimony in the Ettinger case were printed, but in such a confused and erroneous manner as to prove untrustworthy and practically useless. In view of the gravity of the cases, the original testimony attached to the record was examined and considered by the court, but as it has beSn returned with the records to the court below, it is not available to the reporter. The separate opinions of this- court (infra) recite the material portions of the testimony, the admission of which was assigned for error in each case; and the following condensed statement of the general facts proved in the cases, collated from the paper books on both sides, is deemed sufficient for an intelligent understanding of the points decided.
    John Kintzler and Gretchen, his wife, were German people, who owned and lived in a one-and-a-half-story log house and a few acres of mountain land in a wild and secluded location in-Adams township, Snyder county, Pennsylvania. They lived almost entirely to themselves, made no friends, and repelled social intercourse. They guarded their premises, which they scarcely ever left, by watch-dogs and firearms. They gained the reputation of possessing and hoarding money, which they kept in a box buried in the ground under where the bed stood, covered by a trap-door in the floor.
    On Saturday night, December 8th 1877, their house was burned, which fact was first discovered between four and five o’clock on the following morning by Jacob Schraeder, their nearest neighbor on the east, who with members of his family immediately went to the spot. They found the house almost burned to the ground and saw part of the remains of two human beings lying in the fire. The remains of one were removed from the flames and recognized as the body of John Kintzler. The remairis of the other could not be identified. The bones were collected and buried with the remains of the body of John Kintzler in a box. Certain indications negatived the theory that the fire was accidental and suspicion attached to Israel Erb, who was Kintzler’s nearest neighbor on the west, and who was known to have had' a grudge against Kintzler. Ettinger, Uriah Moyer, and one Bickliart were also suspected of complicity in the crime with Erb, and were arrested, but were discharged on .habeas corpus for want of sufficient evidence against them.
    About six months afterwards, in June 1878, Mary Hartley, a girl of about eighteen years of age, a native of that locality, well known to Ettinger, Erb and the Moyers, went to J. G-. Moyer, a respectable storekeeper, and told him that she had something to tell him in private; that her mind was so disturbed that she could not rest until she told it; she then gave in detail the following statement, — which she subsequently testified to on the trials :
    On the night of the 8th of December 1877, about nine o’clock, she started from the house of Jonathan Moyer, about three miles from Kintzler’s,'in company with Jonathan Moyer and his wife Ellen to go to the house of Israel Erb for the purpose of having Ellen Moyer measured for a pair of shoes ; on the way, they met Uriah Moyer, who joined them. The party soon afterwards met Israel Erb in the woods near the Kintzler premises, who stated he was out coon hunting. After proceeding a short distance, they reached the fence of Kintzler’s property. The men crossed the fence, telling the two women to remain at the fence, as Kintzler had cross dogs, and he might shoot. One of the men tied up one of the dogs, then kindled a fire on a flat stone in front of the door, and with an axe cut a hole in the door, reached in and unfastened it and went into the house. The witness and Ellen Moyer then crossed the fence and went to the house. Mary Hartley testified that she saw John Kintzler lying on the floor near the stove, and that she saw Ettinger strike old Mrs. Kintzler on the head with a club and she fell over on her back. Ettinger, Erb, and Jonathan Moyer then secured the money-box from the hole under the floor, carried it out of the house, and by the light of burning pine divided the money. Ettinger and Jonathan Moyer then went to a small shanty used by the Kintzlers as a stable, carried leaves from the stable to the house, scraped up some of the blood from the floor into a piece of crock, and poured on the ground in the yard; then washed the crock and threw it into the woods. They then fired the house and the whole, party left. They reached Jonathan Moyer’s about three o’clock on the morning of December 9, where they went to bed.
    In order to corroborate the testimony of Mary Hartley, the Commonwealth caused to be exhumed and produced on the trial some of the bones, which had been buried, and called several physicians, who testified that one of them at least was that of a human being, which corresponded in size with the stature of Gretchen Kintzler, and that, from its ossified condition, it belonged to a person well advanced in years. It was in evidence that Gretchen Kintzler was a small woman, weighing about one hundred pounds, and was about sixty-eight years of age.
    The Commonwealth also produced several witnesses, one of them a detective, and the others, fellow-prisoners of Ettinger, in the penitentiary, who testified that Ettinger made voluntary confession to them of the part which he took in the murder, and stated that Mary Hartley had previously sworn to the truth in all the details.
    The particular testimony in each case, the admission of which forms the separate specifications of error, is fully referred to in the separate opinions of this court.
    The three cases were argued together.

      A. II. Dill (with him T. J. Smith and J. M. Dyrm), for the plaintiffs in error.
    The Commonwealth’s evidence falls under two classes: 1. That of an accomplice, Mary Hartley. 2. Evidence claimed by the Commonwealth to be corroborative of Mary Hartley’s testimony. Under the latter class falls the testimony of witnesses relating to the finding a spot of blood on the ground outside of the house and to finding pieces of .the earthen crock in the woods, and to the alleged confession by Ettinger. W e objected t.o the admission of such testimony, not because it may not have been evidence for some purposes, but because it was admitted for the.,express purpose of Corroborating Mary Hartley, upon whose testimony alone the Commonwealth relied to prove the corpus delicti. We-contend that the corpus delicti must be distinctly proved before evidence of confession is evidence of guilt, and that it should have been established independently of Mary Hartley’s testimony, unless her testimony as to the fact of the murder was corroborated by facts, directly connecting the prisoner with the crime. The testimony, the admission of which is complained of, was not corroborative of her testimony in this sense. The mere fact that a piece of crock was found in the woods and a spot of blood on the ground had no connection with the prisoner’s alleged guilt. But the seemingly exact correspondence of physical appearance with Mary Hartley’s description was calculated to mislead the jury on the vital point of the ease — the corroboration of the witness’s statement that the prisoners committed the crime. Evidence of corroboration should be of some fact existing entirely independent of the control of the witness, and not such as could be manufactured by a designing witness.

      S. H. Grimm, District-Attorney, and A. W Potter (Charles Sower with them), for the defendant in error.
    October 3rd 1881.
   Mr. Justice Sterrett

delivered the opinions of the court

Ettingeb v. Commonwealth.

It was incumbent on the Commonwealth to establish the corpus delicti as well as tire participation of the prisoner in the murder. A careful examination of the testimony returned with the record and referred to in the charge of the court leads to the conclusion that it was amply sufficient for both purposes. It was exclusively the province of the jury to consider the testimony, pass upon the credibility of the witnesses, and determine the truth of every material allegation on which the Commonwealth relied; and, inasmuch as it was fairly submitted to them in a clear and. comprehensive charge, to which no exception is taken, it must be conclusively assumed that all the ingredients of murder of the first degree were fully proved to the satisfaction of the jury. The testimony of Mary Hartley, the principal witness for the prosecution, was direct and positive, both as to the commission of the crime and the prisoners’ active participation therein. After giving a somewhat detailed statement as to how the parties came together on the night in question and what occurred on the way to Riutzler’s, she proceeded to state in her own way what took place there. The following is the substance of her testimony as to some of the more prominent facts. When they reached the fence east of the house the prisoner ordered her to remain there, saying that Kintzler had cross.dogs, and if he was not in bed he might shoot. In company with his male companions he then crossed the fence, and after securing one of the dogs and tying him to a stake at the fence, he returned to the house.. The witness afterwards heard a crash of broken glass and saw the prisoner making a fire on a large stone in front of the house. He then drew from under his vest a short-handled axe with which the door was forced open and they all rushed into the house. In company with Ellen Moyer the witness then crossed. the fence, for the purpose of seeing, as she says, what was going on; and, on reaching the house she saw Mr. Kintzler lying on the floor near the stove and saw the prisoner strike Mrs. Kintzler on the head with a club, and knock her down, as she was attempting to escape. The box containing Kintzler’s money was then secured, and, after dividing the contents by the light of a pine torch, they threw the box, together with some pennies, &c., back into the house. The prisoner then scraped some of the blood from the floor into a piece of crock, and after emptying it on the ground at the east side of the house, threw the crock into the woods towards Shrader’s. The diabolical work was then completed by setting fire to the house, and all the parties withdrew. Such is the substance of the more prominent facts to which she testified, without attempting to give the language of the witness. Several witnesses were examined as to the condition of the premises next morning when the fire was first discovered. The house was then nearly consumed, and in the ruins several persons saw what they believed to be the remains of the old people. They were taken out and afterwards examined by experts and others who testified on the trial. The testimony on this subject is such as to leave no doubt as to their identity. ■ It was also shown that blood was found at the east end of the house, and some of the witnesses testified in regard to the hole, under the floor, in which Mr. Kintzler kept his money-box, and also as to where the dogs were found. In addition to this, it was shown that the prisoner, while in the Middleburg jail, admitted to Joseph Wagner that he helped to kill the Kintzlers; and after they were taken to the Eastern penitentiary he made a more detailed statement to Wagner, in which he said the old woman came running out and he knocked her down, and one of his companions killed her; “ that they took the money out, carried leaves in, and set the house on fire,” &c. Other testimony tending to prove the guilt of the prisoner was submitted the jury, but it is unnecessary to dwell further on the facts of the case. They have been sufficiently brought to notice to show that if the witnesses were believed by the jury, the verdict, both as to the prisoner’s guilt and the grade of the crime, was fully warranted. The only question that is not conclusively settled by the verdict is, whether any of the testimony complained of in the assignments of error should have been excluded. Unless there was substantial error in that regard it is very clear that the verdict and judgment should not be disturbed.

The first assignment relates to the admission of testimony to prove that at the morning after the alleged murder, a pool of blood was found at the east side of the house, where, according to the testimony of Mary Hartley, the contents of the broken crock had been emptied the night before. She had testified fully as to what had occurred on the night in question ; 'among other things, that the prisoner scraped some of the blood into a piece of crock, and emptied it on the ground at the east end of the house, so that the people might think the Kintzlers liad-been killed outside the house, and thus the probability of a search for their remains in the ruins would be lessened. In connection with other evidence, the testimony complained of tended to show that the condition of things on the night of the alleged murder, as testified to by Mary Hartley, was correctly represented by her, and thus, to some extent, her statement of what had occurred was verified by witnesses who visited the premises early next morning. On behalf of the prisoner it was urged that, according to her own version of the transaction, Mary Hartley was an accomplice, and, therefore, unworthy of belief. This was denied by the prosecution, but still it was a question for the jury to pass upon, and, in view of the circumstances, it was competent for the Commonwealth to verify as far as possible her statement as to the res gestae. This was properly done by the testimony of witnesses who came upon the ground immediately after the occurrence, and while the means of verification existed. In the case of an acknowledged accomplice, it is well settled that corroboration need not extend to the whole of his testimony. If it is shown that he has testified truly in stole particulars, the jury may infer that he has done so in others. "We think, therefore, that the testimony was not incompetent for the purpose for which it was admitted.

In his instructions to the jury, as to the effect of Mary Hartley’s testimony, in case they found she was an accomplice, the learned judge gave the prisoner the full benefit of the law, and even more, by saying : “ The practice is well settled that no conviction shall be had upon the unsupported testimony of an accomplice.” This statement of the rule is not strictly correct, in theory at least. The degree of credit that should be given to an accomplice, is a matter exclusively within the province of the jury. It is competent for them to convict on his uncorroborated testimony, but the source of such evidence is so corrupt that it is deemed unsafe to rely upon it alone; and hence it is the practice of courts to admonish the jury of the danger and advise against a conviction on the testimony of an accomplice, unless he is corroborated to some extent, especially as to the person of the party he accuses: Watson v. Commonwealth, 28 Pittsburgh Leg. Jour. 89. The principle which allows the testimony of an accomplice to go to the jury for their consideration, necessarily involves the right to believe and act upon it. The general rule appears to be that, notwithstanding the admonition and advice of the court, the jury may, if they see fit, act upon the evidence of an accomplice, and convict without any corroboration of his statement, but in practice such a thing seldom occurs.

The second assignment is not sustained. Mary Hartley testified that after the murder the prisoner and one of his companions crawled under the bed and brought out the box containing the money. It appeared, by other testimony, that in the ground immediately under the floor where the bed stood, there was a hole in which the box "was secreted, and that access to it was had through a trap-door in the floor at that place. Several witnesses had testified, without objection, to having seen the hole on the morning after the fire and subsequently ; and then the witness, Mr. Smith, was called to prove that he was there about two months after the occurrence, and the hole was still visible. The objection was not to the character of the testimony, but that in point of time it was “ too remote to furnish any evidence of corroboration.” The learned judge in overruling the objection remarked that testimony had been given of the existence of the hole at the time of the fire and for some time after; and that the witness was competent to speak of its being there for a period of two months afterwards; and, though the evidence was very slight, he thought it a circumstance for the jury. There was nothing wrong in this. The objection to the offer was groundless, and there was no error in overruling it.

The testimony, to which the third assignment relates, was admitted, as the learned judge says in his ruling, on the author ity of the principle, stated in Wharton’s American Law, and cases there cited, viz.: “ When a man, at full liberty to speak and not in the course of a judicial inquiry, is charged with a crime and remains silent, that is, makes no denial of the accusation by word or gesture, his silence is a circumstance which may be left to the jury.” The testimony shows that on several occasions when they were together in the Eastern penitentiary the witness accused the prisoner of killing the Kintzlers, and the latter made no reply. The circumstances under which the accusation was made were so well calculated to elicit a reply that we are not prepared to say that the silence of the prisoner was not a circumstance, though very slight, for the consideration of the jury. Silence, under certain circumstances, may amount to a tacit admission of guilt. It is said in Koscoe’s Criminal Evidence, *54: “Besides the proof of direct confessions, the■ conduct or demeanor of 'a prisoner on being charged with the crime, or upon allusions being made it, is frequently given in evidence against him.” The Commonwealth had proved that on a previous occasion, when in company with Joseph Wagner and others in the Middleburg jail, the prisoner expressly admitted to Wagner that'he helped to kill the Kintzlers. This was proved by Wagner, who also testified that he then told him “ he had better keep his mouth shut, that the sheriff might hear.” On that occasion the witness, Thomas Jordan, was present as a fellow'prisoner in the jail, but it appears from the testimony that he was then asleep and did not hear the admission testified to by Wagner. Again, after the prisoner', Jordan and Wagner were taken to the Eastern penitentiary, there was, according to Wagner’s testimony, another conversation, in which he represents the prisoner as saying that: as soon as they came to the house lie threw in chloroform and with the same axe he stole across the mountain he cut the door open. lie went in then and Kintzler got up and he knocked him down, and old Erb killed him, and the old woman came running out and he knocked her down and Jonathan Moyer killed her. He said that he knocked down both of them, but he did not do it to kill them. Then he told me that they, took the money out and carried leaves in and set the house on fire and burnt it, and then they divided the money and went home.” This is an extract from the testimony of Wagner as we find it in the official report of the evidence. It appears that the Kintzler murder was the subject of conversation and accusation while the parties named were fellow-prisoners in jail and afterwards in the penitentiary. The credibility of the witness was for the jury, and we see no impropriety in admitting testimony as to what was said and done by the prisoner in relation to the subject. His admissions, and his conduct when accused of participation in the murder, were, under the circumstances, competent evidence.

The fourth and fifth assignments may be considered together. They relate to the finding of pieces of crock in the woods where Mary Hartley testified the crock was thrown on the night of the murder, and present substantially the same question that is raised by the only assignment of error in Moyer v. The Commonwealth, just decided. For reasons given in the opinion filed in that case the assignments are not sustained.

The testimony complained of in the two remaining assignments was not improperly admitted. Neither of these assignments requires special notice. They are not sustained.

After a careful examination of the record, including the official report of the testimony returned therewith, we have failed to discover anything that would justify a reversal of the judgment which was pronounced after a full and fair trial.

Judgment affirmed, and it is ordered that the record be remitted to the Court of Oyer and Terminer of Snyder county for the purpose of execution.

- . Erb v. Commonwealth.

The prisoner was indicted jointly with four others for the murder of Gretchen Kintzler, alleged to have been committed in December 1877, and on a separate trial was found guilty of murder of the first degree. The case was fairly submitted to the jury in a clear and comprehensive charge to which no exception wás taken. It must be conceded that the testimony before the jury fully justified their verdict. The only ground of complaint is that the court erred in admitting certain items of testimony specified in the assignments of error. Unless there was manifest error in that regard there is nothing that would justify a reversal of the judgment after a full and fair trial, such as appears to have been accorded to the prisoner in this case. The evidence of his guilt was direct and positive, as well as circumstantial, and it was" the special province of the jury to pass upon it and declare b}7 their verdict whether he was guilty or not. If they believed the witnesses for the Commonwealth,— and it must now be presumed they did, — they could have no reasonable doubt of his guilt. .

The testimony complained of in the first assignment, was admitted for the purpose of corroborating the statement of Mary Hartley, the princijial witness for the Commonwealth, in regard to the piece of crock alleged to have been thrown over into the adjoining woods on the night of the homicide. She had testified that immediately after the Kintzlers were murdered and the money divided, one of the parties, who actively

Sarticipated in the felony, scraped some of the blood from the oor into a piece of red earthen crock, and having emptied the same on the ground at the east end of the house, threw the crock over an apple-tree into the woods adjoining the premises. It was proved by several witnesses that blood was found next morning where Mary Hartley said it had been emptied, and in further corroboration of her statement the witness A. K. Gift was permitted to testify that he made search at the point indicated by her testimony and there found several small pieces of crock which fitted together and had evidently formed a larger piece, corresponding in kind with that mentioned by her. Throughout the trial the credibility of Mary Hartley was assailed by the prisoner on the ground that, according to her own version of the transaction, she was an accomplice in the crime, if any was committed. This was one of the questions which the jury had to consider, and in view of all the circumstances we cannot say the testimony was improperly admitted. It tended in some degree to corroborate the testimony of the witness as to the res gestae. The length of time that elapsed before the search was made would perhaps be a serious objection if it were not for the explanation, given by the witness himself, that he found the pieces of crock covered by leaf mould and overgrown with wire roots, thus indicating that they had probably been thrown there at the time of the murder. The secluded place in which they were found also tended to negative the idea that they were placed there by any other agency than that testified to by Mary Hartley. IVe agree with the learned judge in saying that the evidence was very slight, but still, in connection with other facts and circumstances, it was not improper for the consideration of the jury.

The admissions of the prisoner as testified to by J. W. Swartz were clearly competent evidence. ' In that interview he stated, among other things, that he had been invited to go along and help to kill the Kintzlers ; that, in reply to Uriah Moyer’s invitation to go along, he said, “ No, that I can’t do, but if you will do it I will walk away and not say anything about it.” This, in connection with his enjoining upon the witness not to say anything about it, was a significant fact. It tended to prove that he was accessory before the fact to the murder; that while, according to his own statement, he declined to take an active part in the contemplated murder, he encouraged its commission by proposing to walk away and say nothing about it. In the light of other testimony tending to prove motive as well as actual participation in the murder, it was for the jury to say whether the extraordinary conduct and declarations of the prisoner did not point to him as one of the guilty parties.

There is no merit in the third assignment. It was not insisted on during the argument, and requires no further notice.

In connection with the other evidence in the case, the testimony referred to in the next assignment had some tendency to prove motive, and therefore it was not improperly admitted.

The remaining assignments relate to the admission of testimony offered for the purpose of showing motive, and, in connection with other evidence in the case, of proving the complicity of the prisoner. We fail to discern any error in either of them. The testimony complained of tended to prove facts and circumstances which were proper for the consideration of the jury. The offer covered by the eighth assignment was to prove that the prisoner, in conversation with the witness, dedared the fire at Kintzler’s was not the result of an accident, and that he helped to burn them. It requires no argument to prove that the testimony was rightly received, as some evidence of guilty participation in the crime laid in the indictment. It might be regarded as slight, but, nevertheless, it was proper for the consideration of the jury.

The ninth assignment relates to the offer to prove that the prisoner knew that John Kintzler had a considerable sum of money about his house, and where he kept it. The possession of such knowledge by the prisoner may have been but slight evidence of motive, but in connection with other testimony before the jury, it was proper for their consideration. The fact that the money belonged to the husband alone, is of no practical consequence. If the controlling motive was to obtain possession of the husband’s money, and in so doing, both husband aud wife were murdered, it cannot be doubted that, on the trial for the murder of either, the motive which led to the commission of the double crime may be shown.

We have considered each assignment in connection with the testimony that was submitted to the jury, and find nothing in the record that calls for a reversal of judgment.

The judgment is affirmed, and it is ordered that the record be remitted to the Court of Oyer and Terminer of Snyder County, for the purpose of execution.

Moyer v. Commonwealth.

The inability of the. prisoner to furnish us, according to the rule, with the testimony necessary to a proper understanding of the only assignment of error in this case, rendered it necessary to carefully examine the testimony returned with the record and referred to in the charge of the court; and the result of that examination has been to satisfy us not only that the testimony complained of was rightly received, but also that the prisoner, after a full and fair trial, was justly convicted and sentenced. If the testimony, received and submitted to the jury in a clear and comprehensive charge, was believed by them, as we must now presume it was, they were clearly justified in rendering the verdict upon which judgment was afterwards pronounced. The only question presented for our consideration is whether the testimony of Mr. Grift was properly admitted for the purpose of corroborating Mary Hartley, the principal witness for the Commonwealth. She had testified to the prisoner’s participation in the homicide, and the circumstances connected therewith. Among other things, she stated that immediately after the murder was committed and the money divided, one of the par-lies concerned therein scraped some of the blood from the floor into a piece of red earthen crock, emptied it at the east end of the house, so that the people would think the Kintzlers were killed outside and would not look for their remains in the house, and then threw the crock over the top of an appletree into the adjoining woods. It was proved by several witnesses that blood was found next morning where Mary Hartley said it had been emptied, and, in further corroboration of her testimony, the witness, -Mr. Gift, was permitted to testify, under exception, that in August, 1880, he, in company with other persons, made search in the edge of the woods, where Mary Hartley said the piece of crock Vas thrown, and there, among the leaves and stones, found several pieces; in the language of the witness, “quite a number among the rotten leaves and dirt. There were small roots grown over parts of the pieces, wire roots.” He also testified that he tried some of the pieces, and they fitted together, thus indicating that they were parts of a larger piece, corresponding in kind with that alleged to have been thrown away on the night of the murder. This may appear to be a trifling circumstance, but in view of the fact that throughout the trial, the credibility of Mary Hartley was assailed as unworthy of belief, on the ground that, according to her own showing, she was an accomplice, it was not improper to con'oborate her statement as to the res gestae. She had been corroborated as to other circumstances, but it was urged, as a special objection to the admission of the testimony complained of, that so long a time had elapsed before the pieces of crock were found. In reply to this, the learned judge properly remarked that he could not say, “ as matter of law, that it was too remote to be received in evidence.” The fact that the place where the pieces of crock were found was secluded, lessened the probability of their having been placed there by any other agency than that testified to by Mary Hartley ; and the further fact that they were covered with leaf mould, and wire roots had 'grown over them, indicated that they had probably lain there from the time the murder was committed. In connection with other facts and circumstances in the case, we cannot say it was improper to receive and submit the testimony to the jury. As corroborative evidence, it may have been very slight, but still it was not incompetent. We have exahained the record with that degree of care which the gravity of the case demands, and are. constrained to say there is no error that would warrant a reversal of the judgment.

The judgment is affirmed, and it is ordered that the record be remitted to the Court of Oyer and Terminer of Snyder County, for the purpose of execution.


author: Mr. Justice Paxson

text:
    Butterbaugh’s Appeal.
    1. The interest and not the principal of a trust fund must bear the expense of administering it.
    2. Spangler’s Estate, 9 Harris 335, followed.
    3. A testator provided by his will that his married daughter’s share in his estate should be put to interest, and the same paid to her annually, and that if she oullived her husband, her share should be subject to her immediate use and control, but if she died before her husband that then said share should be paid to her children. A trustee was appointed, who filed an account of the trust during the life of testator’s daughter. Held, that the expenses and charges incurred in filing said account should be charged to income, not principal.
    June 14th 1881. Before Merque, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., absent.
    Appeal from the decree of the Orphans’ Court of Franld in county : Of May Term, 1881, No. 131.
    This was an appeal from the decree of the said court, directing that the account of John J. Butterbaugh (the appellant) as trustee under the will of Jacob Butterbaugh, deceased, be so stated that certain expenses and charges, paid by the trustee, should be charged to the corpus of the trust fund and not to the annual income.
    Jacob" Butterbaugh, the testator, by his will, proved April 11th 1871, directed as follows: “ It is my will, and I do hereby so direct, that the shares of my daughters, Mary Hollinger and Susan Stroek, in my estate, shall be put to interest, and the same paid to the said Mary and Susan, annually. But it is my will, that if their husbands should die before them, then, and in that case, their respective shares shall be subject to their immediate use and control. But in case of the decease of the said Mary Hollinger or Susan Stroek, before their husbands, then, and in that event, it is my will, that their respective shares in my estate shall go to their children on their attaining the age of twenty-one years.”
    The testator appointed no executor or trustee and John J. Butterbaugh was appointed administrator, c. t. a. and the (Orphans’ Court also appointed him trustee under the will. In his account, filed as trustee as to the share of Mary Hollinger, he claimed credit, inter alia, for the following items: Counsel fee, register and clerk, $20.35 ; taxes paid on money at interest, $46.01; allowance to accountant, $24; one third costs of audit, $12.77; tolalj $103.13. The account was referred to an auditor and upon exceptions to his report, the court, in an opinion by Rowe, P. J., decided, inter alia, as follows:
    “The account ought to be so stated that the expenses and charges will come out of the fund, and not out of the annual interest, for Mrs. Mary Hollinger is the primary object of the testator’s bounty. It is in the hands of a trustee only to protect it from the husband. It is intended that she shall have all possible benefit from the fund, consistent with its being in the hands of a trustee. She is to have the interest annually without deductions, for the principal is not to be preserved for some one else.”
    ■ The said items, amounting to $103.13, were accordingly charged against the principal of the trust estate. The said trustee thereupon took this appeal, assigning for error the decree that the said sum of $103.13, should be paid out of the principal instead of out of the income.

      W. U. Brewer ( W. Rush Gillan, with him), for the appellant.
    The trust under the will of Jacob Butterbaugh was not only to protect the estate from the husband of Mrs. Hollinger, but also, in case she should die before her husband, to preserve her share intact for her children. The charges for administration of the trust and for taxes on money at interest should therefore be paid. out of the income. If such payments be made out of the capital, the latter will be gradually consumed, and the time may come when there may be no fund left, and consequently no annual income. The children may then claim the whole corpus of the fund and the decree entered in the court below would afford the trustee no protection: Spangler’s Estate, 9 Harris, 335.

      W. F. Patton, for Mrs. Mary Hollinger, appellee, did not appear, and presented no paper book.
    October 3rd, 1881.
   Mr. Justice Paxson

delivered the opinion of the court

It was held in Spangler’s Estate, 9 Harris 335, that the interest and not the principal of a trust fund must bear the expense of administering it. Were it otherwise, the entire principal might bo absorbed in paying the trustee’s commissions upon income. A trustee is entitled to a reasonable compensation for his services as they are rendered, and unless a contrary intention appear, the compensation must come out of the income of the fund in the administration of which it is earned.

The learned judge of the Orphans’ Court ordered that the sura of $103.13, composed of an allowance for compensation to the accountant, taxes paid by him, and sundry costs and ex-. [Deuses connected with the filing of the account, and the audit thereof, be paid out of the principal of the fund, upon the ground that'the cestui que trust was the primary object of the testator’s bounty, and that it was the intent of said testator that she should have “ all possible benefit from the fund consistent with its being in the hands of a trustee.” The difficulty in this view of the case is that the will of Jacob Butterbaugh expressly provides that in case of the decease of Mary Ilollinger, the cestui que trust, before her husband, the share of said Mary in the testator’s estate shall go to her children on their attaining the age of twenty-one years. It is her share that is to go to her children upon the contingency referred to; not what may be left of it. Such share cannot be preserved unless the income of the fund is made to bear the cost of its administration. The case does not need elaboration. It is ruled by Spangler’s Estate.

The decree is reversed, and it is now ordered that the aforesaid sum of $103.13, and the costs upon this appeal, be paid by the appellee. ■