Commonwealth v. Dennery

Supreme Court of Pennsylvania October 19, 1917

Commonwealth v. Dennery, 259 Pa. 223 (Pa. 1917)

102 A. 874; 1917 Pa. LEXIS 545

Bbown, Frazer, Mestrezat, Moschzisker, Potter, Stewart, Walling

Opinion of the Court

Opinion by

Mr. Justice Walling,

This is an appeal by the defendant from the judgment on conviction of murder of the first degree. We have carefully examined all of the assignments of error and the entire record and find no reason to disturb the judgment. The case was well tried by court and counsel and the verdict is supported by abundant evidence.

Conceding that defendant returned to Clearfield for a *230short time on the night of the homicide and later gave his correct name in the adjoining county, the court could not instruct the jury that as matter of law such facts rebutted any inference that defendant fled to avoid arrest. The statement made by the witness, Shade, just as the robbers departed was properly admitted as part of the res gestee. The fact that the deceased had accused defendant of criminal offenses was admissible on the question of motive, as it tended to show ill feeling between them. A man would naturally hate one who had accused him of attempting to commit an infamous crime. This evidence merely went to the extent of showing that the deceased had made such an accusation against defendant and for that purpose it was competent. See Commonwealth v. Andrews, 234 Pa. 597. As Howies was not resisting the robbers, his murder was such as might suggest some other motive, hence it was proper for the Commonwealth to prove any facts naturally tending to show the defendant’s prior hostility to the deceased. The evidence did not establish defendant’s guilt of an independent crime and was not admissible for that purpose : Commonwealth v. Haines, 257 Pa. 289.

The charge was comprehensive and accurate, embracing the important features for and against the defendant ;, and was fair and adequate. The court is not required to call the jury’s attention to every item of evidence, and it is no objection to a charge that something more might properly have been added.

“It is not possible, nor even desirable that the judge should refer to and emphasize every item of evidence on both sides in a way that the counsel would consider adequate. In doing so he would run much risk of coming to speak as an advocate rather than a judge. Nor is he required to go over all the evidence on any particular point every time he refers to the point in the course of his charge. It is enough if he gives to the jury a general review of the evidence on the one side and the other, which fairly and adequately presents the respective con*231■tentions of the parties, with enough reference to the items of evidence to assist the jury in recalling it as a substantial whole, and to appreciate its bearing”': Commonwealth v. Kaiser, 184 Pa. 493, 499. It was not legal error for the court to say to the jury that, “It would be a disgrace to the administration of the law if any considerable number of innocent men were ever convicted and it would be equally a disgrace if any large number of guilty men escaped.” In view of the evidence tending to establish a conspiracy between the defendants, and also of that tending to show that three men actually committed the robbery, evidence of the conviction and sentence of the other defendants was proper for the consideration of the jury in this case.

There was a John Rodkey residing in Houtzdale Borough, and also a John Rodkey residing about two miles from the borough, in an adjoining township. The borough was the post office of both. John Rodkey, of Houtzdale, was drawn as a juror and the postal authorities delivered the summons to the one residing in the township. He appeared as a juror and on his voir dire gave his correct residence as above stated. He was accepted and served as a juror in this case. There was no fraud or impersonation. Conceding that the summons was intended for the other John Rodkey, it was merely such an irregularity as was cured by the statute and affords no ground for setting aside the verdict. See Commonwealth v. Potts, 241 Pa. 325.

The assignments of error are all overruled, the judgment is affirmed and the record is remitted for the purpose of execution.

Reference

Cited By: 5 cases
Status: Published
Syllabus: Criminal law — Murder—First degree — Bobbery — Motive — III •will — Identification of defendant — Voice—Evidence—Bes gestee— Charge — Sufficiency—Avoiding arrest — Bebutting inference — Gonviction of accomplices — Admissibility ■ — Jurors of same name— Error in summoning — Waiver—Act of March SI, 1860, Sec. 58, P. l. m. 1. In the trial of an indictment for murder it appeared that the defendant and two confederates, all armed with revolvers and with their faces partly concealed with handkerchiefs, went to a shanty where deceased was visiting. The defendant entered, placed his revolver against deceased’s head and shot and killed him instantly. Defendant and his confederates compelled the other occupants of the shanty to hold up their hands and took from the only one possessing any money all that he had, Defendant was positively identified by one of tlie occupants of tlie shanty by his size, unusually light hair, and by the features of the upper part of his face which was exposed, .and was identified by another by his voice, although less positively. There was evidence that at about one o’clock on the day of the shooting defendant and his two confederates were together at a camp in the vicinity and were overheard talking about the money at the shanty and planning to get it, that later in tlie afternoon they were again overheard talking on the same subject, and that they left the camp together half an hour before the commission of the crime. Shortly after the shooting defendant appeared in the neighborhood acting in a nervous, excited and hurried manner and stated to two acquaintances, “we had some shooting up there and the neighbors are telephoning the police.” There was evidence that three or four days before the murder deceased had said in the defendant’s presence that defendant had taken money from him and had attempted to commit an unnatural offense upon him. Defendant fled and was apprehended seven months later in another state where he was working under an assumed name. Held, a verdict of guilty of murder of the first degree was justified by the evidence. 2. In a homicide case the statement by one of the witnesses to the shooting, just as the robbers were leaving the shanty, that the defendant was the one who had done it, was properly admitted as part of the res gestee. 3. In such case the fact that deceased had accused defendant of criminal offenses was admissible as tending to show ill feeling between defendant and deceased, but not for the purpose of showing defendant’s guilt of an independent crime. In a homicide case it is proper for the Commonwealth to prove any facts naturally tending to show defendant’s hostility toward deceased. 4. In such case, conceding that tlie defendant returned to the town where the crime was committed for a short time on the night of the homicide, and later gave his correct name in an adjoining county, the court could not charge as a matter of law that such facts rebutted any inference that the defendant fled for the purpose of avoiding arrest. 5. In such case in view of the evidence tending to establish a conspiracy between the defendants, and also of that tending to show that three men actually committed the robbery, evidence of the conviction and sentence of the other defendants was properly admitted. 6. The court is not required in a homicide case to call the jury’s attention to every item of evidence, and it is no objection to a charge that something more might have been added. The charge is sufficient if it embraces the important features for and against the defendant. 7. In a homicide ease it is not error for the court to charge ilIt would be a disgrace to the administration of the law if any considerable number of innocent men wore ever convicted and it would be equally a disgrace if any large number of guilty men escaped.” 8. Where a summons mailed to a juror in a borough was errone-ously delivered to a person of the same name residing in an adjoining township and using the same post office, and the latter appeared and on his voir dire gave his correct name and residence, and was accepted and served as a juror, such irregularity was cured and affords no ground for setting aside a verdict in a homicide case.