Commonwealth v. Payne
Commonwealth v. Payne
Opinion of the Court
Opinion by
The appellant comes here with three complaints. The first is of the refusal of the court below to strike from the indictment the record of the defendant’s conviction of rape. It contained two counts: one for murder, and the other for voluntary manslaughter. It further charged that the prisoner had been convicted of voluntary manslaughter in 1891 and of rape in 1895. The Commonwealth could not have anticipated with certainty a verdict of guilty of murder of the first degree, and the manifest purpose of inserting in the indictment a count for voluntary manslaughter, though not necessary, was to bring the prisoner, if convicted of that offense, within the provisions of the 182d Section of the Act of March 31, 1860, which is as follows: “If any person who has been convicted of any offense, other than murder of the second degree, for which the punishment prescribed by this code is imprisonment by separate or solitary confinement at labor, shall, after such conviction, be guilty of a similar offense, or of any offense for which such punishment is directed, he shall in either case, upon conviction, be sentenced to undergo an imprisonment, and be kept at labor not exceeding double the whole period of time which may, by the penal laws of this Commonwealth, be prescribed for the crime of which he is convicted.” If this provision is to be invoked, the previous conviction of the accused must be averred in the indictment, and the record of his conviction must be offered in evidence in support of that averment. In this way alone can the provisions of the statute be carried into effect: Rauch v. Commonwealth, 78 Pa. 490; Kane v. Commonwealth, 109 Pa. 541; Halderman’s Case, 53 Sup. Ct. 554. Counsel for the prisoner do not contend that it was error to refuse to strike out the averment as to his conviction of voluntary manslaughter, but complain of the refusal to strike out the averment of the conviction of rape in 1895. In making this complaint it is insisted that under the words of the
Appellant’s second complaint is that the Commonwealth was permitted to ask one of the witnesses for the defense on cross-examination whether he had been shortly before convicted of robbery and of assault and battery with intent to rob. The credibility of that witness as well as that of all the others called by the defendant was for the jury, and the question was properly allowed. It was not necessary for the Commonwealth to produce and offer in evidence the record of his prior conviction: Com. v. Racco, 225 Pa. 113.
The remaining complaint is of the inadequacy of the instructions on the law of self-defense and of the failure of the trial judge to refer in his charge to the testimony of certain witnesses called to show the vicious and quarrelsome disposition of the deceased and threats made by him against the prisoner. Standing alone the charge could fairly be regarded as inadequate upon the law of self-defense; but reading it in connection with the unqualified affirmance of the prisoner’s first, second and third points, carefully and elaborately prepared by his counsel, it is not to be so regarded. By those points the court was asked to instruct the jury that if they found from the testimony that the prisoner had killed the deceased under the circumstances set forth in the points, he acted in self-defense, and should be acquitted. These points and the answers to them are part of the charge, and we must so consider them upon complaint of its inadequacy. When they are so considered the complaint of the inadequacy of the instructions as to the law of self-defense is groundless. While it is the duty of a trial judge in a capital case to fully instruct the jury upon the law applicable to the facts without
After due consideration of all the assignments we find nothing in any one of them calling for a reversal of the judgment. It is, therefore, affirmed and the record remitted for the purpose; of execution.
Reference
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- • Criminal law — Criminal procedure — Act of March SI, 1860, Section 182, P. L. S82 — Indictments—Allegation of previous convictions — Proof—Evidence—Witnesses—Cross-examination— Charge to jury. 1. Section 182 of the Act of March 31, 1860, P. L. 382, providing that, “If any person who has been convicted of any offense, other than murder of the second degree, for which the punishment prescribed by this code is imprisonment by separate or solitary confinement at labor, shall, after such conviction, be guilty of a similar offense, or of any offense for which punishment is directed, he shall in either case, upon conviction, be sentenced to undergo an imprisonment, and be kept at labor not exceeding double the whole period of time which may, by the penal laws of this Commonwealth, be prescribed for the crime of which he is convicted,” requires that the previous conviction of the accused shall be averred in the indictment and that the record of his conviction shall be offered in evidence in support of that averment. 2. While only one conviction can be proved under the act, an indictment may aver two convictions, so that if it appear that the prisoner was not convicted of one of the offenses alleged in the indictment, the Commonwealth may offer evidence to show that he was convicted of the other. 3. Where an indictment charging the defendant with murder recited the record of defendant’s previous conviction of manslaughter and the record of his previous conviction of rape, the court made no error in refusing to strike from the indictment the record of the conviction of rape, where the identity of the defendant with the person convicted of manslaughter had not been proved; if the Commonwealth had not succeeded in proving such identity and the motion to strike from the indictment the record of the defendant’s conviction of rape had been allowed, the Commonwealth would have been precluded from offering evidence of such conviction. 4. The defendant was not prejudiced in such ease by the reading of the indictment containing the allegations of his former convictions within the hearing of .the full panel of. jurors, where the court expressly charged the jury that they were to try the case on the evidence presented and were to disregard the' allegations of defendant’s previous convictions. 5. Defendant’s rights' were sufficiently protected' in such cáse when, after he had admitted his conviction of manslaughter, evidence to prove his conviction of rape was excluded. 6. The credibility of all witnesses is for the jury, and it is not error to permit one of the witnesses on cross examination to be asked whether he had shortly before been convicted of robbery and of assault and battery with intent to rob; and it is not necessary for the Commonwealth to produce and offer in evidence the record of his prior conviction. 7. While it is the duty of a trial judge in a capital case to fully instruct the jury upon the law applicable to the facts without any special request on the part of the defendant that he do so, he is not required to recapitulate the evidence or refer to it in detail. How detailed a reference to it ought to be is largely in his discretion.