Commonwealth v. Bubnis

• Decision Date: 07 January 1901
• Docket Number: 236
• Parties: Commonwealth v. Bubnis
• Court: Pennsylvania Supreme Court

47 A. 748

197 Pa. 542

Commonwealth v. Bubnis

No. 236

Supreme Court of Pennsylvania

January 7, 1901

Argued October 8, 1900

Appeal, No. 236, Jan. T., 1900, by defendant, from judgment of O. & T. Schuylkill Co., Nov. T., 1899, No. 1147, on verdict of guilty of murder in the first degree in case of Commonwealth v. Rollis Bubnis. Affirmed.

Indictment for murder.

At the trial the evidence tended to show that on Sunday, September 24, 1899, at about 7 o'clock in the evening, Joseph Rutskowski was struck on the head by an ax, and that the blow was struck by the prisoner. It appeared that the prisoner was identified with a faction known as the Propreonokus, and that the deceased was a member of a hostile faction known as the Zukus. Eleven members of the Propreonokus, including the prisoner, were jointly indicted for the crime. The evidence showed that immediately before the killing, these men, in the presence and the hearing of each other and of the prisoner had made threats against the deceased. About an hour before the killing, the prisoner was seen to have an ax in his possession, which he at first attempted to conceal under his coat, but subsequently flourished in a violent manner. When Dr. Davis was on the stand he was asked this question:

"Q. State whether or not a hatchet or an ax would produce such a wound as you discovered on this man's head."

Objected to because it suggests to the witness an instrument, which is highly improper and incompetent. Admitted. Defendant excepts. Bill sealed. [2]

Frank Douches, on cross-examination, was asked this question "Do you know that the Stenkiewiczs who were boarding at Rutskowski's left on account of a difficulty that you had with Rutskowski?"

Mr. Bechtel: Objected to as irrelevant, immaterial and incompetent, and not cross-examination.

The Court: As the question stands now it is not cross-examination, and we sustain the objection. Defendant excepts. Bill sealed. [3]

"Q. Did not Rutskowski accuse you, in the presence of three men, of a heinous offense against his wife?"

Mr. Bechtel: Objected to as irrelevant, incompetent, immaterial and not cross-examination.

The Court: The objection is sustained to the question in the form in which it is put. Defendant excepts. Bill sealed. [4]

"Q. Are you not going to get married to Mrs. Rutskowski?"

Mr. Bechtel: Objected to as incompetent, irrelevant and immaterial.

The Court: We sustain the objection. We do not see that it is material whether or not he is going to marry the widow. We know of no law prohibiting it. Defendant excepts. Bill sealed. [5]

Counsel for the commonwealth asked the witness:

"Q. Did you hear Andrew Coras say anything just before the blow was struck, and whilst he was in company with these two defendants?"

Mr. Seltzer: Objected to as incompetent and immaterial what Andrew Coras said; that he is not on trial here, and these defendants are not responsible for the declarations of Andrew Coras. Furthermore, the witness has already declared he heard nothing; that he heard talking among themselves, but did not hear it; they did not talk loud enough. They cannot contradict their own witness.

The Court: We permit the question. Defendants except. Bill sealed. [6]

Eva Sincavage was asked under objection: "State whether or not you heard Anthony Machulis say anything in reference to the Zukus?" Defendant excepts. Bill sealed. [7]

The witness Majika was asked this question: "Every witness in this case that has testified at all to the killing, or the time when the blow was struck, has established the time as between 7 and 8 o'clock. Do you now swear to this jury that you were within thirty or forty feet of where a man was struck down in cold blood, and you did not know anything of it until the next day when you were coming home from work?" Question allowed. [9]

Frank Shappell, was asked this question: "Do you not know it to be a fact that this piece of testimony that you have here given in court is false, and that it was given for the express purpose of counteracting the fact testified to by Mrs. Jane Grow, that the party that struck the match had a white hat, and for no other purpose whatever?" Question allowed. [10]

The court charged in part as follows.

[He (Machulis) heard him (referring to Rollis Bubnis) talk to Frank Wylonis, saying that they would make sausage of him.]

[That during the 24th of September threats were made by Rollis and others in the hearing and presence of Matt as to the killing of Zukus, as to making bologna, as to filling the streets with bologna, and threats as to meat being cheap, and other threats of the same or a similar character made by these defendants or their companions, in the presence and hearing of these defendants, all of whom were together that afternoon from the time they left Benders until they reached Blazes later in the day.]

[That the next day when Rollis was arrested by the constable and charged with the crime, he manifested no surprise and did not deny the charge; and again at the Shenandoah lockup spoke of the crime without denying or disclaiming any connection with or responsibility for it; and from these alleged facts the commonwealth's officers claim that Rollis Bubnis struck the blow, and that Matt aided and counseled by his presence and advice before the blow was struck, and that therefore he and Matt are equally guilty as if he had struck the blow.]

The district attorney in his speech to the jury used the following language:

"I say now when I debate the first proposition in this case, that Rollis Bubnis is guilty of murder in the first degree, and I shall prove it to you beyond any peradventure of a doubt."

Mr. Seltzer: The district attorney having stated to the jury as a positive declaration that Rollis Bubnis is guilty of murder in the first degree, I now move that the jury be discharged.

The Court: Which motion is refused.

Defendant excepts. Bill sealed. [15]

Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.

Errors assigned were (1) that the judgment and sentence should be arrested, and the verdict set aside for want of jurisdiction as no venue of the crime charged had been proved; (2-7, 9, 10) rulings on evidence as above; (11-14) portions of charge as above; (15) ruling as to the district attorney's speech; (17) that a verdict of murder in the first degree was not warranted; (18) that the charge of the court was inadequate, and too unfavorable to defendant.

Finally, in the discharge of the duty imposed upon us by the act of February 15, 1870, having reviewed the evidence and found in it "the ingredients necessary to constitute murder in the first degree," and the charge of the court below having been adequate and fair to the prisoner, as well as to the commonwealth, we are compelled to overrule the last two assignments; and, all having been overruled, we now affirm the judgment of the court below, and remit the record for the purpose of execution.

W. D. Seltzer, for appellant. -- Where the record fails to show that the offense charged was committed in the county where the venue is laid, judgment must be reversed.

Misstatements in the charge are grounds for reversal: Com. v. Swayne, 1 Pa. Superior Ct. 547; Com. v. Stauffer, 12 Lanc. Law Rev. 361.

The district attorney exceeded his authority, and influenced the jury by his remarks, to the prejudice of the defendant: Com. v. Smith, 10 Phila. 189; Com. v. Bruner, 1 Dist. Rep. 141; Com. v. Nicely, 130 Pa. 270; Holden v. Penna. R. Co., 169 Pa. 1; Com. v. Windish, 176 Pa. 167; Com. v. Weber, 36 W.N.C. 193; Lane v. Com., 59 Pa. 371.

Edgar W. Bechtel, with him M. P. McLoughlin, district attorney, and W. J. Whitehouse, for appellee.

Before McCOLLUM, C.J., MITCHELL, DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE BROWN:

By the first assignment of error we are asked to reverse the judgment of the court below because the venue as laid was not proved. The indictment upon which the defendant was convicted of murder of the first degree, charged the commission of the offense in Schuylkill county, and we might dismiss this assignment for the reason that the conviction is conclusive that the crime charged was there committed: Com. v Gurley, 45 Pa. 392. But the contention of the appellant, that the venue as laid was not proved, is not sustained by an examination of the testimony; it was proved as laid. Ducias, the commonwealth's witness to the prisoner's crime, testified, on January 1, 1900, that he was then living at William Penn, and had carried the dying victim from the gate, where the blow was struck, into the house, in which his death shortly afterwards followed, and that, at that time, he was boarding with Rutskowski, the deceased. Mrs. Rutskowski testified that William Penn was in Schuylkill county. But it is...