Commonwealth v. Manfredi

• Decision Date: 31 May 1894
• Docket Number: 468
• Parties: Commonwealth v. Harry Manfredi, Appellant
• Court: Pennsylvania Supreme Court

29 A. 404

162 Pa. 144

Commonwealth v. Harry Manfredi, Appellant

No. 468

Supreme Court of Pennsylvania

May 31, 1894

Argued May 22, 1894

Appeal, No. 468, Jan. T., 1894, by defendant, from judgment of O. & T. Schuylkill Co., Sept. T., 1893, No. 750, on verdict for Commonwealth. Affirmed.

Indictment for murder. Before BECHTEL, J.

No paper-books were filed in this case, but in appellant's history of the case it is stated that at the trial it appeared that about two o'clock on the morning of Aug 16, 1893, George Ochs was shot and killed in his house in the borough of St. Clair, Schuylkill county, and on the same morning, about six o'clock, defendant was arrested for the murder and committed to await trial. Defendant had spent the early part of the same evening with the family of Ochs taking lunch and drinking beer. On the trial the Commonwealth contended that defendant, after leaving the house at about half past eleven o'clock, returned about two o'clock for the purpose of committing one of the felonies mentioned in the act of 1860. Defendant on the other hand contended that he came back back to the house because of an arrangement between him and Mrs. Ochs, and that upon his return and entry into the house he was immediately assaulted by Ochs, and that, in the struggle to release himself, all which happened in the dark, defendant fired a pistol, and killed Ochs accidentally.

Errors assigned were as follows:

"1. The court below erred in overruling the following motion, that the indictment and array of grand and petit jury should be quashed because neither the president judge, nor additional law judge, met and acted with the jury commissioners and sheriff of Schuylkill county when the jury wheel for 1893 was filled.

"2. The court below erred in overruling the following motion to quash indictment and array of grand and petit jury, because the sheriff and jury commissioners failed to proceed with due diligence to fill the jury wheel for said county for the year 1893, in that their first meeting was held on Nov. 16, 1892, and the last on January 23, 1893, spending in all two months and eight days to fill said wheel.

"3. The court below erred in overruling motion to quash the indictment and array of grand and petit jury, because the jury commissioners failed to fill the jury wheel for said county before the first Monday of the first term of court of common pleas of 1893.

"4. The court below erred in overruling the motion to quash the indictment and array of grand and petit jury, because the sheriff failed to take the oath required in section 87 of the act of 1834 before he proceeded to unlock and lock and seal the jury wheel preparatory to the filling and after filling said jury wheel for 1893.

"5. The court below erred in overruling the motion to quash the indictment and array of grand and petit jury, because the sheriff, Joseph Woll, and his deputy, George Ochs, the officers who served the summons on the grand jurors and petit jury for said November sessions, were by blood related to George Ochs, the deceased." [The deputy sheriff testified that he may have been a second cousin of the deceased, that he thought he was, but he was not certain of the relationship, and that he may not have sustained that relationship. The sheriff denied all relationship with the deceased.]

"6. The court erred in not instructing the jury what the different degrees of felony were, that is, failed to give a proper explanation to the jury of arson, rape, robbery and burglary, especially after calling the attention of the jury to "the commonwealth's claims that the prisoner had no arrangement to come to the house of George Ochs for the purpose of meeting Mrs. Ochs, and having intercourse with her, but that he came there for the purpose of committing one or the other of the felonies mentioned in the act of March 31, 1860. We do not say whether such is a fact or not in this case, but if you find such to be the fact from all the evidence before you, then we say, in the language of the act itself, 'all murder which shall be committed in the perpetration of or attempt to perpetrate any arson, rape, robbery or burglary shall be deemed murder of the first degree.'

"7. The court erred in not charging the jury that the use of a deadly weapon, when fired in the dark and not aimed at the vital part of a person, as in the case of the prisoner at the bar, that under such circumstances, the firing of the pistol shot which killed George Ochs would not render him guilty of murder of the first degree, especially as the evidence in this case failed to show specific intent to take life, and no malice whatever was proven.

"8. The court erred in making his charge to the jury too general, and not applying it to the particular facts developed in the testimony.

"9. The court erred in denying a motion in arrest of judgment, because the jury separated nightly and occupied rooms not communicating, with no officer in attendance on the outside of said rooms, but sleeping in an adjoining room."

Judgment affirmed and record remitted that sentence may be executed.

Charles A. Snyder, for appellant, cited: Purdon's Digest, vol. 1, 958; Commonwealth v. Lippard, 6 S. & R. 395; 2 Bl. Com. 354; Munshower v. Patton, 10 S. & R. 337; Thompson and Merriman on Juries, 109; 3 Whart. Cr. L., 7th ed. § 3042; Pfeiffer v. Com., 15 Pa. 468.

James W. Ryan, district attorney, for Commonwealth.

Before STERRETT, C.J., GREEN, MCCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE MITCHELL:

The first five assignments of error are all hypercritical and devoid of substance, and some of them frivolous.

The president judge is a constituent member of the jury board and it is part of his duty to assist in the selection of jurors. There is no evidence...