McConkey v. Commonwealth

Mr. Justice Green delivered the opinion of the court, December 30th 1882. The testimony admitted under the fourth assignment of error was neither offered nor admitted for the purpose of fixing the grade of the crime. The killing did not take place while the burglary was being committed, but two days later. Hence it was no part of the proposed offer of proof that the homicide was perpetrated in the commission of the burglary. But that circumstance would not render the testimony inadmissible if for other reasons it was competent. In point of fact the evidence offered, and that which had been previously given without objection by the witness Snyder, constituted in part the history of [420] the transaction. The deceased in company with others had gone out in search of certain goods that had been stolen. He was engaged in this search at the time he was killed. The witness Snyder had heard the shots at a distance, and having started for the scene of the occurrence saw several men fleeing from the direction of the place. Afterwards, in going over the line of the flight, he discovered certain articles, knives, razors, pistols and a pocket-book containing papers of the deceased, lying on the ground at different places, apparently on the line of the flight. Another person, named Calhoun, was with him at the time and saw the articles as they were discovered. Snyder had delivered his testimony without objection, and then Calhoun was called to testify to the same fact's. It was to his testimony the objection was made. The offer of proof was in corroboration of Snyder and it was explanatory of the facts of the case. We see no reason why it was not competent. The articles were connected directly with the deceased. Certain receipts made to the deceased in his own name, were a part of the papers found, some in the pocket-book and others lying in the immediate vicinity. Without question it was entirely proper to prove the discovery of these articles shortly after the homicide, in close proximity to the place where it occurred, and in the line of flight of certain persons who were seen running from the locality immediately after the offence was committed. Other testimony was given to connect the defendant with the crime. The learned judge of the court below carefully instructed the jury that this testimony could not be considered, as fixing the grade of the crime, unless the murder was connected with and related to a robbery, committed at the same time. It was not pretended that the previous burglary could be used for that purpose. We see no error in the comments of the court in relation to the testimony of the witness Lynch. The contradictions in his testimony were referred to, his want of frankness was stated, his credibility was left entirely to the jury, as it should have been, and they were told that they might reject it altogether, if they felt bound to do so. The jury saw the witness and heard his testimony and were the best judges as to the degree of credit to be given to his statements. The suggestion of the court, which is complained of, was nothing more than a comment upon his apparent want of culture and a consequent lack of fluency in explaining some apparent contradictions in his testimony. The assignment is not sustained. The answers to the defendants’ sixth and seventh points were clearly right. The sixth point was affirmed without qualification as to its first clause, and substantially as to the last. The very caution was given which was asked by the point. So also [421] as to the seventh point. It contains no legal proposition, and all the effect to be attached to material contradictory statements in the testimony of the witnesses had been already expressed in the answer to the sixth point, in which the jury were told that they might for that reason reject such testimony altogether. Of course if they might absolutely reject it, they would be at liberty to have doubts about it. Whether the particular contradictory statements relied upon, would actually create a doubt in the minds of the jury was a matter exclusively for them to determine. There might be explanatory statements in the other testimony of the witnesses or in the other testimony in the case which would mitigate or remove any doubt, and of this the jury ' alone could judge. The other assignments are not pressed and are without merit. The seventh raises a question which was entirely for the jury, and they have determined the degree of the offence upon testimony which, if believed, was quite sufficient to justify their finding. The judgment of the Court of Oyer and Terminer of Allegheny county is affirmed, and it is ordered that the record be remitted to said court for the purpose of carrying the sentence into execution.