Commonwealth v. Weber

• Decision Date: 25 March 1895
• Docket Number: 320
• Citation: 167 Pa. 153,31 A. 481
• Parties: Commonwealth v. William Weber, Appellant
• Court: Pennsylvania Supreme Court

31 A. 481

167 Pa. 153

Commonwealth v. William Weber, Appellant

No. 320

Supreme Court of Pennsylvania

March 25, 1895

Argued March 4, 1895

Appeal, No. 320, Jan. T., 1895, by defendant, from judgment of C.P. Berks Co., June T., 1894, No. 261, on verdict of guilty of murder of the first degree. Affirmed.

Indictment for murder. Before ENDLICH, J.

At the trial counsel for the defense entered the following protest to the impaneling of the jury.

"And now, to wit, September 12, 1894, the defendant protests and objects to the impaneling of a jury in the above prosecution a full panel not being present to draw from." To this the court replied: "I do not understand that the prisoner or the commonwealth is entitled to the full panel when the other jurors are engaged in another case." (Exception.) [10]

The panel having been exhausted, the jurors stood aside by the commonwealth were recalled as follows: Charles W. Hetrich recalled:

Mr Stevens: "I object to recalling any jurors until the defendant has the benefit of the full panel, there not being a full panel of the jurors present, the remaining jurors being engaged elsewhere, and objection having been made when the prisoner was called for trial to going on with an incomplete panel."

The Court: "The objection is overruled; exception for defendant." [11]

Mr. Stevens: "Before the arraignment, I desire to offer two formal objections to quash the indictments, as follows: 'And now September 12, 1894, the defendant by his counsel, Stevens & Stevens, moves to quash the indictment in the above case, on the following grounds: First. The district attorney, on Monday, September 10, 1894, before the indictment was found, in the presence of the grand jury, called the attention of the court to this case, desiring said court to fix a day for the trial thereof. Second. The prisoner, before indictment found, was brought handcuffed into the court room in the full presence of the grand jury. The district attorney's attention being called to the first reason to quash, stated there was no application made such as is referred to in the said reason and that there was no discussion of the matter; that the court's attention was called to the existence of such a case and the court promptly intimated to the district attorney that nothing would be heard in the matter at that time." Motion overruled. [12]

George Snyder, a witness for the commonwealth was asked this question:

By Mr. Jacobs: "Q. -- What is your first name? A. -- George. Q. -- You occupied the same cell with Weber? A. -- Yes, sir. Q. -- In the Berks county prison? A. -- Yes, sir. Q. -- Are you still in jail? A. -- Yes, sir. Q. -- Before he was released did you hear him say that when he would get out he would get square or get revenge on the old gray-headed son of a bitch? A. -- No, sir, I didn't hear him say that; his wife was up to see him before Christmas and she said her father promised each of them a Christmas present, and she said he said if she lived with him she wouldn't get any, and three or four days afterwards he said, 'she can go if she wants to, but I will get square with the gray-headed son of a bitch.' Q. -- He said he would get square with the gray-headed son of a bitch? A. -- Yes, sir." [13]

(1.) In allowing private counsel for the commonwealth to comment on the failure of the defendant to call his wife as a witness, and overruling the objection made by defendant, as follows:

Mr. Jacobs: "Counsel for the defense having argued to the jury that there was but one witness testified against Weber, (and that was Miller) and that it was oath against oath, and that between the two he would believe the defendant, and the defendant having gone on the stand and testified in his own favor, counsel for the commonwealth now proposes to comment to the jury on the fact that defendant didn't put his wife on the stand."

Mr. Stevens: "Counsel for the defendant appearing, states that no argument was made to the jury except upon the evidence in the case and the facts as produced by the witnesses, and objects to the improper argument of the commonwealth's counsel to the jury, and asks for an exception if it is allowed -- if not, that the jury be instructed to disregard it."

The Court: "The objection is overruled and bill sealed for defendant."

(2.) In allowing counsel for the commonwealth to offer to place the wife of the defendant on the stand as a witness for the prosecution, and in not striking said offer from the record, which is as follows: "Mr. Jacobs, counsel for the commonwealth, at this point offered to put the wife of the defendant on the stand if there was no objection made by the defendant, but to which the defendant's counsel objected, and the offer was rejected by the court."

(3.) In allowing private counsel for the commonwealth to argue matters of fact to the jury not produced in evidence, as follows: "A murder has been committed in our midst -- a foul murder, an excuseless, a causeless murder -- and I was asked to prosecute, asked by the old widow, asked by her children, asked by their kinsfolk and their neighbors; and, after looking over the ground, I said, 'yes, I will prosecute this man, for it was a heartless murder and he stands without excuse.' I believe now, that the testimony is in, as I believed then, that I was right and the most causeless murder had been committed in our midst."

(4.) In allowing private counsel for the commonwealth to argue the following matters of fact to the jury not produced in evidence: "It is absolutely necessary for the safety of human life that he who sheds the blood of man by man shall his blood be shed. It is necessary for the protection of your wife, and your babe; it is necessary for the protection of yourself, because nothing else will stop the cowardly arm of the assassin except the fear of the law."

(5.) In allowing private counsel for the commonwealth to argue to the jury the following matters of fact not produced in evidence: "Watch! He has taken that handkerchief from the right-hand pocket fifty times to-day, and I intend to get the handkerchief; that right hand next to me, the crippled hand next to me -- that handkerchief, over and over, and it was always put in the right hand back; that is the 'linxer' they talked about."

(6.) In allowing private counsel for the commonwealth to argue to the jury that the defendant had not produced any evidence as to its character, as follows: "If Justice KLEMMER was on trial to-day for his life, he could bring you one thousand people, from the president of the Reading Railroad down to the lowest bootblack that loafs around the depot, besides citizens by the hundred, to testify to his good character; and yet that man to-day under trial for his life has not a single dog to bark his praise -- characterless, homeless and soulless, you have done this deed, and put your poor wretched self in the position you are. God have mercy on your soul, for I pity you."

(7.) In allowing private counsel for the commonwealth to argue the following matters of fact to the jury not produced in evidence: "Then this fellow with the smell of the jail all over him, the disgrace of a felon all around him, he sneaks up the alley and says; 'I want my wife, I will get her, by God. The son of a , if he comes out I will do him up.'"

(8.) In allowing private counsel for the commonwealth to argue the following matters to the jury, not produced in evidence: "Then, gentlemen of the jury, the meanest and dirtiest part of him -- he wanted that certificate, that piece of paper; he wanted that little parchment on which the preacher wrote the marriage ceremony which separated her from the general harlot and made her the wife of a man. By the eternal, he wanted to rob her of that, even to show that her babe was illegitimately born! I do not know of a man whose conduct strikes me as more villainous and abominable than his. And if he had been let alone a little while longer he would have killed his wife, too."

(9.) In allowing private counsel for the commonwealth to comment on the following state of facts not in evidence: "And when he is convicted, he will make a confession before he goes to his God that what he said was false."

The evidence relating to the circumstances of the killing is stated in the opinion of the Supreme Court.

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

Errors assigned were, (1-9) complaints of illegal conduct and speech during trial, by counsel for commonwealth; (10, 11) rulings on the calling of jurors; (12) overruling motion to quash; (13) ruling on evidence, quoting the bill of exception; (14) that the evidence did not warrant a conviction of murder of the first degree.

After a most careful examination, we are all of the opinion, there is nothing in the record, or the assignments of error, which should move us to disturb the judgment; it is therefore affirmed, and it is directed that the record be remitted to the court below, that the sentence may be carried into execution according to law.

Wm. Kerper Stevens of Stevens & Stevens, for appellant. -- The judgment should be reversed on account of the improper conduct of the counsel for the commonwealth: Tucker v. Henniker, 41 N.H. 317; Barker v. Dixey, Cas. Temp. Hardwicke, 264; Taylor on Evidence, sec. 1367; Greenleaf on Evidence, sec. 340; act of May 23, 1887, P.L. 158; Wharton's Criminal Practice and Pleading, sec. 561.

The husband and wife being one person in the eyes of the law, the court below erred in allowing counsel for the commonwealth to call her as a witness for the commonwealth and afterwards to comment on her omission to testify: Act of May 21, 1885; Darlington's App., 86 Pa. 520; Bitner v. Boone, 128 Pa. 567; Phillips on...