McCue v. Commonwealth

• Citation: 78 Pa. 185
• Parties: McCue <I>versus</I> Commonwealth.
• Decision Date: 10 May 1875
• Court: United States State Supreme Court of Pennsylvania

78 Pa. 185

McCue versus Commonwealth.

Supreme Court of Pennsylvania.

March 25, 1875.

May 10, 1875.

March 25th 1875.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Oyer and Terminer of Lycoming county: Of January Term 1875, No. 51.

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J. J. Metzgar and H. C. Parsons, for plaintiff in error.—The presumption from killing with a deadly weapon arises no higher than that it is murder of the second degree: Commonwealth v. Drum, 8 P. F. Smith 9; Johnson v. Commonwealth, 12 Harris 389. The prisoner should have been asked if he had anything to say why sentence of death should not be pronounced: 1 Chit. Crim. Law 700; 1 Archbold's Crim. Prac. 676, note; Dunn v. Commonwealth, 6 Barr 384; Hamilton v. Commonwealth, 4 Harris 129; Dougherty v. Commonwealth, 19 P. F. Smith 292.

W. W. Hart, District Attorney, for Commonwealth, defendant in error, cited, as to the evidence containing the "ingredients" of murder in the first degree, Grant v. Commonwealth, 21 P. F. Smith 495. As to want of evidence of motive: Commonwealth v. Ferrigan, 8 Wright 386; Commonwealth v. Green, 1 Ashmead 299; Kilpatrick v. Commonwealth, 7 Casey 198; Cathcart v. Commonwealth, 1 Wright 112. If the prisoner be not asked if he had anything to say why sentence should not be pronounced, the verdict will not be set aside, but the record will be returned that the prisoner may be sentenced anew: Jewell v. Commonwealth, 10 Harris 94.

Chief Justice AGNEW delivered the opinion of the court, May 10th 1875.

We think the assignments of error in this case fail to show any ground for reversal, except of the sentence of the Court of Oyer and Terminer. It was certainly competent to show, that the prisoner and the deceased had visited the same woman, and to follow this by evidence, that immediately after the homicide, the prisoner referred to the fact that he warned the deceased to let her alone, that she would be a curse to any one, and now his words had come to pass. Jealousy is among the strongest of the human passions, and it certainly was for the jury to determine, in the absence of any other assignable motive, whether it was the cause of the prisoner's act. The deceased and the prisoner had been apparently upon good terms, and lived together as single men. The witness, Amelia Wertman, testified, that she was engaged to the deceased, and that the prisoner had visited her, and proposed to her to run away. If nothing had been secretly rankling in his heart, the shooting under the circumstances stated was singular and scarcely to be accounted for. The evidence of intoxication at the time of the shooting is very slight, and the degree of intoxication must have been very little. Afterwards he appears to have been a good deal more so, though not excessively drunk.

There was no evidence that the deceased had used threatening language, or acts toward the prisoner. Hence, the answer of the court to the fifth point was correct. The facts were referred to the jury. The only material question is, whether the evidence in the case contained the elements, or "ingredients" of murder in the first degree. It is certainly true, that the Commonwealth must establish the existence of these elements, otherwise no presumption arises from the killing, of an offence higher than murder in the second degree. But if the evidence may reasonably admit of the conclusion, that the murder was wilful, deliberate and premeditated, it is for the jury to pronounce upon the degree of the crime, and a court of error will not reverse. In giving an interpretation to the Act of 15th of February 1870, we have said, if there have appeared in the testimony the ingredients to constitute murder in the first degree, our power ceases. We do not sit to hear the case as upon a motion for a new trial, to determine where the weight of evidence lies, but "to determine whether the ingredients necessary to constitute murder in the first degree shall have been proved to exist." These being proved, the jury must determine the guilt or innocence of the prisoner: Grant v. Commonwealth, 21 P. F. Smith 495.

This leads us to inquire into the circumstances of the killing. But one witness, Charles McCarty, was present. His account of the affair is concise and clear. On Sunday, October 25th 1874, McCarty was with the prisoner, who invited him to come into the house where he and the deceased lived. On going in, Dieter, the deceased, was lying in a bunk, apparently asleep. McCue, the prisoner, and McCarty took a seat by the window and took a drink of wine. McCue gave McCarty something to apply to his sore eyes, and while he was applying it McCue was hunting for some money in his pockets, took off his vest, and laid a pistol on the window sill. McCarty said, "Barney do you carry a pistol?" He said he did; it stood him in hand to, and he would use it probably before I thought. Dieter jumped up and said: "You are always talking of putting a bullet into somebody. If you think you can put one into me, come out and try it." He then made for the door, putting off his coat as he went. McCarty jumped out before him, and Dieter ran against him outside of the door, throwing him upon his hands and knees. While they were going out McCue...