Appeal, No. 213, Jan. T., 1953, from judgment of Court of Oyer and Terminer of Potter County, Dec. Sessions, 1952, No. 1, in case of Commonwealth of Pennsylvania v. Alfred L. Sallade. Judgment and sentence affirmed.
Charles F. G. Smith, with him Cummings & French, for appellant.
Robert J. Flint, District Attorney, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
Alfred L. Sallade, defendant appellant, appeals from the judgment and sentence of the Court of Oyer and Terminer of Potter County denying motions in arrest of judgment and for a new trial after a verdict of guilty of voluntary manslaughter following an indictment for murder.
Defendant shot and killed Charles Van Pelt, a young man nineteen years of age. The killing is admitted. The issue presented to the jury was whether or not the killing wa in self-defense, in the protection of defendant's property or was accidental. The jury by its verdict decided that the killing was without justification.
The deceased, with three of his boy friends and also the father of one of the boys, was spending the 1952 Labor Day weekend in the Cherry Springs Park area near Coudersport, Potter County. The boys intended to do some hunting and, therefore, carried rifles. The four young men left the cabin where they were staying in order to spend an evening camping. They met the father in his automobile, left their equipment with him, and went in search of a camp site. During the search they came across an airport on the edge of which was a lunchroom operated by defendant. The boys stopped in the lunchroom for something to eat. It was testified that about a week previously this lunchroom had been burglarized. During the course of remarks between the boys and a Velma Turner, the person in charge of the lunchroom, a statement made by the boys aroused Mrs. Turner's suspicion that these boys may have had something to do with the burglary. After the boys had finished eating, they chose a camp site near the airport and moved their equipment to the new spot; they then started back to the lunchroom to obtain some ginger ale. Meanwhile defendant came into the lunchroom. He was informed of the remarks which had aroused the suspicion of Mrs. Turner and also that she had seen a car driving around the place in a suspicious manner. The defendant sent Mrs. Turner and her daughter down the road in his car to burn some garbage. It was while the mother and daughter were carrying out the defendant's instructions that the boys reached the lunchroom for the second time. They tried
the door but found it locked. There was evidence that the outer screen door had a connecting bell inside the room which rang when the boys tried to enter and that they had "bucked up against the door". These circumstances led the defendant to believe, he testified, that another burglary was about to be attempted.
When the boys found they could not gain entrance, they went to the adjoining airfield and climbed into a parked plane. At this point Mrs. Turner and her daughter returned. One of them, dressed in slacks, tried the same door by which the boys had tried to gain entrance, found it locked, returned to their car, turned off the headlights, drove to the side of the building facing the airfield, and entered the lunchroom by a side door. Although it was light enough for the boys to witness this incident, they could not discern who was in the car. There was evidence that the boys saw a light flash on and off in a nearby plane. Thus the boys also became suspicious that everything was not right in the vicinity of the airport. They returned to their camp, procured their rifles, and again proceeded to the airport. Upon reaching the field, they split up, two of them going on each side of the building. At about 8:30 p.m. Mrs. Turner had seen the four approaching the airfield and had notified the defendant who had procured a shotgun and was waiting inside the darkened building. When he saw two of the boys coming toward the building, one of them carrying a gun, he shot through a window, fatally wounding Charles Van Pelt and injuring Erwin R. Bergdoll.
Defendant assigns as error the failure of the trial judge to grant his motion to quash the indictment on the ground that it did not sufficiently define the alleged crime. The Act of March 31, 1860, P.L. 427, Sec. 20, 19 PS 351 provides, "In any indictment for murder... it shall be sufficient... to charge that
the defendant did feloniously, wilfully, and of his malice aforethought, kill and murder the deceased...". The indictment conforms to the exact words of the statute above cited. This Court has ruled that an indictment drawn in conformity with the provisions of this Act is sufficient: Goersen v. Commonwealth, 99 Pa. 388; Commonwealth v. Bruno, 316 Pa. 394, 175 A. 518.
The remaining assignments of error relate to alleged trial errors. Two main objections are to two sentences in the court's charge to the jury, relating to the plea of self-defense; viz.: "... The guilt of the accused must be established in the first instance beyond a reasonable doubt and when it was so established he is not to be acquitted because the jury after hearing him or his witnesses, may be in doubt as to whether he acted in self-defense. In making that defense he admits his intention of the killing of another and the burden is upon him to show it could not have been avoided...."
It is contended that the jury would be led to believe that it must first consider "the guilt of the accused" before considering the plea of self-defense. This standing alone might have been error under the principle laid down in Commonwealth v. Palome, 263 Pa. 466, 106 A. 783. But the next sentence of the charge reads: "... Where a defendant sets up self-defense, and undertakes to establish his excuse, the evidence both from his side and the Commonwealth must be weighed so as to show by the fair weight and preponderance of the evidence that it was established, in order to acquit...." Any possible error was cured by this explanation. Of course, the burden always remains upon the Commonwealth to prove beyond a reasonable doubt from all the evidence in the case the guilt of defendant.
Likewise, the instruction that the plea of self-defense admitted the intent to kill was further elaborated upon and explained. At the end of the charge the trial
judge inquired of the defense counsel if there were anything further he wished enunciated, and a request was made to develop this point further. The court then further charged: "... I stated that in making that defense the defendant admits his intention of killing another. By that is meant that he admits that the act of shooting, as in this case, there is no denial that the man was shot and the defendant admits that he shot, and I further told you that the burden is on him to show that it could not have been avoided. You are not to interpret from that remark that he intended the wilful, deliberate and premeditated killing of another...." (Italics supplied)
Immediately thereafter, the judge asked counsel for defense if that met his requirement. He answered, "Yes Your Honor". A charge must be read in its entirety so that each thought may be scrutinized in the context that it was presented to the jury: Commonwealth v. Prescott, 284 Pa. 255, 131 A. 184; Commonwealth v. Gable, 323 Pa. 449, 187 A. 393. In reading this charge as a whole, it is evident that the jury was presented with a correct statement of the law.
Another error complained of is the failure of defense trial counsel to petition for change of venue. New counsel was obtained by the defendant to prosecute this appeal. The Act of March 18, 1875, P.L. 30, Sec. 2, 19 PS 552 provides that "All applications for changes of venue shall be made to the court... before the jury shall be sworn...". Here counsel did not apply for a change of venue as provided by the Act. The failure to apply may not be taken advantage of for the first time on appeal.
It is further contended that the jury should have been permitted to view the scene of the killing. This is entirely a matter of discretion of the trial judge whether ...