Appeal, No. 182, March T., 1954, from judgment of Court of Oyer & Terminer of Mercer County, September T., 1952, No. 1, in case of Commonwealth of Pennsylvania v. John Martin. Judgment reversed. Indictment charging defendant with murder. Before ROWLEY, P.J. Verdict of guilty with penalty fixed at death and judgment of sentence thereon. Defendant appealed.
Benjamin H. Marks, with him Hiram M. Drake, for appellant.
John W. McWilliams, District Attorney, for appellee.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
The defendant was indicted and tried for the felonious killing of his wife. The jury found him guilty of murder in the first degree and fixed the penalty at death. His motion for a new trial was denied. From the judgment of sentence imposed, he brings this appeal and assigns for error a number of matters, the principal ones being that the trial judge erred (1) in refusing to retire the jury for the purpose of taking testimony on a pending motion by the defendant for the withdrawal of a juror based on alleged mingling of the jury with strangers in the lobby of the hotel where the jury was housed during trial recesses, (2) in not charging the jury adequately on the law of manslaughter, (3) in not charging more fully with respect to provocation in its relation to manslaughter and (4) in refusing defendant's request to have the jury polled after their verdict had been announced. The remaining
assignments are either incidental to those above stated or independently fail to support a claim of reversible error.
The first assignment merits little discussion. Upon the court's refusal to retire the jury for the taking of testimony on the defendant's motion for the withdrawal of juror, the withdrawal motion was at once abandoned by defendant's counsel so that the matter forthwith became moot and so remained thereafter. But, beyond that, as the learned trial judge cogently stated in the opinion for the court refusing the defendant's motion for a new trial, - "... there is not a scintilla of evidence that the jurors separated, much less that they communicated with others. The Court afforded defendant an opportunity to present any evidence on the point. The Court was not informed of the source or character of the information upon which defendant's counsel chose to rely. We are convinced that defendant's counsel had no faith in their ability to prove anything savoring of a separation of the jury. We think this is confirmed by the voluntary withdrawal of the motion. ... The fact is that the defendant never indicated any particular juror as offending. If he had, we would have arranged to interview the juror, or jurors, in chambers in the presence of defendant's counsel. ... Notwithstanding that defendant's counsel offered nothing to support his motion we nevertheless conducted such an investigation as was possible and concluded that the complaint was wholly without substance." Plainly enough, there was no just basis for the assignment of any error in this connection.
Equally unmeritorious are the appellant's complaints with the charge of the court as to the law relating to voluntary manslaughter and also as to the part provocation may play in adjudging guilt for a
willful killing. Aside from cognate portions of the charge which were not only unexceptionable but were actually not excepted to, the learned trial judge affirmed, inter alia, three points for charge submitted by defendant's counsel relative to provocation and its relation to voluntary manslaughter. In the case of two of the three points, the court added qualifications which were both proper and pertinent. The defendant's point defining voluntary manslaughter as a killing intentionally committed under the influence of passion induced by provocation, which placed the accused beyond the control of reason, was affirmed with the qualification that there must be reasonable basis for the provocation. The other point which the court qualifiedly affirmed was drawn to instruct the jury that, if they believed the defendant with respect to the provocative circumstances to which he had testified, they could find him guilty of voluntary manslaughter. The qualification which the court properly added was that "If you do not believe ...