Summary
Error to the Court of Oyer and Terminer of Allegheny county: Of October and November Term 1875, No. 194.
Philip Murray was indicted in the court of Oyer and Terminer of Allegheny county for the murder of James White, and tried April 13th 1875, before Ewing, P. J., and Kirkpatrick, J., of the Court of Common Pleas, No. 2, of the same county.
Two jurors drawn were challenged by the Commonwealth for cause, and the challenge sustained; a hill of exceptions was sealed for the prisoner.
The matters considered and decided by the Supreme Court do not require a statement of the evidence in the case, further than appears in the charge of. the court below.
The District Attorney submitted the following points for the Commonwealth:—
1. When, a deliberate purpose to kill or do great bodily harm is ascertained, and there is a consequent unlawful act of killing, the provocation, whatever it may be, which immediately precedes the act, is to be thrown out of the case and goes for nothing, unless it can be shown that this purpose was abandoned before the act was done.
2. If the jury find from the evidence that before the killing the prisoner had formed the deliberate intent and purpose to take the life of James White, no subsequent provocation which deceased might have given, would either excuse the prisoner or reduce the grade of his offence, unless the jury are satisfied from the evidence that the said intent and purpose were abandoned by the prisoner before the killing.
6. To make homicide excusable on the ground of self-defence, the danger must be actual and urgent. No contingent necessity will avail. And when the pretended necessity consists of the as yet unexecuted machinations of another, the defendant is not allowed to justify himself by reason of their existence. In cases of personal conflict, also in order to prove such defence, it must appear that the party killing had retreated, either as far as he could by reason of some wall, ditch, or other impediment, or as far as the fierceness of the assault would permit him. If it appears that the conflict was in any way premeditated by the defendant, the defence can no longer be set up. It must be proven that the assault was eminently perilous.
The court, Ewing, P. J., said:—
“ These points are all affirmed, subject to explanations of the general charge.” *
The court charged: * * *
“ All homicide is presumed to be malicious until the contrary appears by the evidence. That' is, all homicide, as a general rule, is malicious, unless when justified by the command or permission of the law — excused on account of accident or self-defence — or alleviated into manslaughter — by .being the involuntary consequence of some act not strictly lawful, or occasioned by some sudden and sufficiently violent provocation without time to cool. And when the killing by the defendant has been proven, all these circumstances of justification or excuse, or alleviation, it is incumbent on him to make out to the satisfaction of the jury. Just as when the Commonwealth, by proving the homicide, having raised a presumption of murder at common law or of the second degree, must prove in addition a specific intent to take life to entitle it to a verdict of murder in the first degree.
“ To excuse a homicide on the ground of self-defence the defendant must satisfy you that the conflict was not of his own seeking ; that he was in danger of great bodily harm, or honestly believed that he was in such danger, and that either he retreated as far as he safely could under all the circumstances, place of conflict, situation and condition of the parties at the time, or could not safely retreat and that the danger was actual and urgent. If the killing was thus done, it is excusable. Put if not so done, it is not excusable. If the conflict was not premeditated on the part of defendant, but was accidental, and the shooting not in self-defence, but in the heat of passion the fatal shot was fired, without cooling time, it would be manslaughter. If the defendant, with a purpose to have a quarrel with White, went armed with his pistol to the mill where White was at work, and sought White, and met him intent on this purpose, and in the conflict he killed White, it was murder. And if he thus killed White wilfully and premeditatedly, that is with a specific intent to take life, it would be murder of the first degree.
“ The intent of a man is to be inferred from his words, but perhaps more safely from acts; where the words and acts accompany each other and are consistent, they form satisfactory proof of intent. If a man uses a deadly weapon in such a manner as would ordinarily cause death, and especially where immediately preceded by declarations that he intends to take life — and death ensues — it is a fair inference that he intended to take life.
“ Apply these principles to the evidence in this case.
“ It does not seem to admit of much doubt that James White was shot at the time and place charged, and that he died on the 11th day of September 1874. And if you believe the testimony of the physician, there can be but little doubt that he died from the effects of the wound, and that it was necessarily fatal. Nor is it denied that defendant inflicted the fatal wound. It appears from the testimony on both sides, that on the 24th day of August the defendant and the deceased had a difficulty. The testimony of the Commonwealth is, that on the same evening the defendant made threats, in presence of Mrs. McGruigen, that he would have the life of White. And that a few days afterwards he, to his brother in their room, said he would have the life of White before he left Pittsburg. The brother positively denies that this last threat was made in his presence.
“ It seems that the morning of the shooting, Michael Murray and White had a quarrel, at a part of which defendant was present. On the part of the Commonwealth it has been testified-that the defendant then made a threat against White. The brother says he heard no such threat. Michael Murray testifies that White had previously made threats against him and his brother Philip, and that he had told Philip of the threat; and you have evidence as to the relative physical power of the defendant and deceased. Next, the Commonwealth has produced testimony of a serious threat made by the defendant at the corner of Fourteenth and Pike streets, half a square from the place of shooting, and a short time before. Witnesses for the defendant testify that they were present at the time and heard no such threats. The witnesses testify that Philip Murray remained after the others left; and that he was there a short time before the shooting. The testimony on both sides shows that Philip Murray had not been employed at this mill for some time before, but was then employed at Shoenberger’s mill. So far as appears he had no business at this mill where White Avas employed. Philip Hurley testifies that a short time before the shooting he saAV the defendant walking back and forth past the gate leading into the mill. Soon after — he does not fix the length of time — he heard a shot, looked around and saw White Avith his hands to his face, and blood spurting from his mouth, and retreating, Murray following ten to twelve feet away, and that Murray fired three or four shots after that. Other witnesses testify to hearing the shot, looking around and seeing White and Murray in about the same position as testified to by Hurley. Michael Brown testifies that he saw Murray entering the gate, going along the track, and in a minute or two he heard a shot; immediately turned round and saw.Murray and White eight or ten yards apart, White, turning away, put up his hands and retreating, Murray, pursuing him, shot three or four times.
“ On tbe part of the defendant, Thomas Ryan testifies that he was accidentally at the mill, and although not having spoken to any one in the mill, either before or after, he saw Philip Murray coming in on the track, and the first he saw of White was that he was close to Murray, and struck at him, missing him, then struck again, hit Murray in the breast. That Murray then backed, drew a revolver and shot White, and except as tó the distance of the parties apart, he describes the after shooting substantially as the other witnesses. This testimony of Ryan is very important; if this meeting of Murray and White was accidental and not premeditated, it would then become very important for you to determine as to whether or not Murray was excusable in the shooting in the honest belief that it was necessary to protect himself from great bodily injury. But if you find that Murray, in pursuance of a previously formed intention, came there armed with his loaded pistol to provoke a conflict with White, and in pursuit of this intent met White, and the conflict took place, and he then killed White, it is murder; and if he had a specific intent to take life, it is murder in the first degree.
“Wbat conclusions do you draw from the evidence? What facts are proven ? If you have a reasonable doubt either as to the guilt or the degree of guilt, the defendant is entitled to the benefit of that doubt. A doubt, to work acquittal, or to reduce the grade of offence, must be serious and substantial, not the mere possibility of a doubt.” * * *
The jury found the prisoner “ Guilty of murder in the first degree.”
The prisoner took a writ of error, and assigned for error:—
1, 2. Allowing the challenges of the jurors by the Commonwealth.
3. Affirming the Commonwealth’s first point.
4. Affirming the Commonwealth’s second point.
5. Affirming the Commonwealth’s third point.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
