Appeal, No. 80, Jan. T., 1950, from judgment and sentence of Court of Oyer and Terminer of Bradford County, May Sessions, 1949, No. 1, in case of Commonwealth of Pennsylvania v. Paul Francis Perry. Judgment and sentence affirmed.
J. Roy Lilley, with him William A. O'Connor, Wm. P. Wilson and Lilley & Wilson, for appellant.
C. Wayne Smyth, District Attorney, with him M. L. Epstein and W. G. Schrier, for appellee.
Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.
OPINION BY MR. JUSTICE HORACE STERN
Paul Francis Perry shot and killed his wife, and, being found guilty by a jury of first degree murder with the death penalty, now appeals on the sole ground that a certain statement included in the victim's dying declarations should not have been admitted in evidence.
Defendant and his wife had had marital differences. On the day of the homicide he had been drinking at a club; his wife was there also but with another group of friends. He returned to their home at about 1:00 A.M. In a confession which he subsequently made he stated that he went upstairs, got his rifle and a shell and then went down and waited for his wife to come home. When she entered, at about 3:30 A.M., he asked her where she had been driving the car at that hour of the night. She answered that that was for him to find
out. He reached for his gun and told her he would find out; he "worked the action of the gun; the gun went off" and she fell. His defense at the trial was that he had no intention of shooting his wife; that he did not know the gun was loaded; that he "just wanted to scare her"; that he did not remember pulling the trigger; that he did not intend to pull it; that his "finger or hand might have hit" it; that the shooting was accidental.
Mrs. Perry was taken to the hospital and between ten and eleven o'clock that same morning, after being informed as to the gravity of her condition, which she said she realized, and after being told that she might die within the next 24 hours and that the chances were that she would not recover, she made some dying declarations. She stated to one of the resident physicians and to an interne that when she entered the house she sae her husband in the room and also a gun near the radio; she turned, went to the kitchen, came back and started to go upstairs, when suddenly her husband shot her. The interne asked her "Was this an accident, Mrs. Perry?" She replied: "No, it was planned." Shortly thereafter the Chief of Police interrogated her and in answer to his questions she stated that when she walked into the house the gun was "ready" by the radio, that she went into the kitchen to get a drink of water and then turned to go upstairs and that that is when he shot her. Mrs. Perry died a day or two later.
Dying declarations are restricted to the circumstances immediately attending the homicide; they are not admissible if they relate to former and distinct transactions and embrace facts or circumstances not immediately illustrating or connected with the declarant's death: Commonwealth v. Spahr, 211 Pa. 542, 543, 60 A. 1084, 1085. To be admissible they must recite only facts to which the declarant would have been allowed to ...