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The errors assigned were [1-7] as above.

John E. Malone, for appellant.

A verdict can not be admitted in evidence unless a judgment has been entered on it.

Witmer v. Eshleman, 18 Law Review

329.

2 Whar. on Crim. Ex., §831.
Saylor v. Hicks, 36 Pa. 392.
Velott v. Lewis, 102 Pa. 326.
Encyc. of Ev., vol. 10, p. 75.

Buch v. Commonwealth, 107 Pa. 486.

The court should have affirmed the de

fendant's third point.

Encyc. of Ev., page 78.

State v. Hickman, 12 N. E. 865.
Com. v. Campbell, 83 Am. Dec. 705.

The court should have affirmed the defendant's fourth point.

Com. v. Clemmer, 190 Pa. 202.
Com. v. Craig, 19 Pa. Super. 81.
Watson v. Com., 95 Pa. 418.
The court should have affirmed the de-
fendant's 5th and 6th points.

Malachi v. State, 89 Ala. 134, 8 So. 164.

Vaughan v. 58 Ark. 353, 24 S. W. 885.
Williams v. State, 69 Ga. II.
Watson v. State, 9 Tex. Crim. App.
237.

State v. Clement, 82 Minn. 434, 85 N.
W. 229.

Chapman v. State, 112 Ga. 56, 37 S. E.

102.

State v. Stevenson, 67 Pac. 1001. Henry on Trial Evidence, page 426, Sec. 466.

Commonwealth v. Simon, 44 Pa. Super., 538.

The court was in error in refusing to charge the jury, before accepting their verdict, which was announced by the foreman to be one of murder in the first degree with a recommendation of mercy to the Court, that the recommendation of mercy meant nothing and was inconsistent with a verdict of murder in the first degree.

The verdict showed that the jury were in doubt and agreed to the verdict on a wrong understanding.

Chas. W. Eaby, Assistant District Attorney, for appellee.

Points may be answered by the court in its own words.

65.

Commonwealth v. McManus, 143 P. S.

Commonwealth v. Clark, 3 S. C. 141. Walbert v. Trexler, 156 P. S. 112, Opinion p. 118.

Kroegher v. McConway & Torley Co., 149 P. S. 444.

The verdict of conviction of Tassone was properly admitted.

4 Black Com., 362, 375.

York Co. v. Dalhousen, 45 Pa. 372.
Com. v. McDermott, 37 S. C. 1.
MacDonald v. Schroeder, 28 S. S. 135.
Wilmoth v. Hensel, 151 Pa. 200.
Holmes v. Com., 25 Pa. 221.
Com. v. McDermott, 224 Pa. 363.
Com. v. Biddle, 200 Pa. 640.
Cox v. Com., 125 Pa. 94.

The defendant's 14th point was properly refused as it would have cut out evidence properly for the jury.

"Flight from the state or neighborhood in which the crime was committed may always be considered by the jury.” Commonwealth v. Clemmer, 190 P. S.

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Flight, under the circumstances detailed, gives them strength and they indicate the degree."

Lanhan v. Commonwealth, 84 P. S. 80. The theory suggested by the point not being sustained by the evidence the court was not obliged to answer it.

Com. v. Calhoun, 238 Pa. 476.

verdict was announced was the polling The only thing that remained after the of the jury. The Court could not have The recommendation cannot affect the sent the jury back to find a new verdict. verdict.

"Though the jury has nothing to do with the punishment yet the addition of a recommendation of mercy, does not exhibit such doubt as to guilt as will John M. Groff, District Attorney and warrant the granting of a new trial."

need not here repeat the reasons for a long-settled rule of the common law, de

Commonwealth v. Bellis, I Northamp- | had not been entered on the verdict of ton Co. Rep. 46. guilty against Tassone at the time the July 3, 1915. Opinion by MR. CHIEF record of it was offered in evidence. We JUSTICE BROWN. Any person who is an accessory be-parture from which might at times refore the fact to a felony may be indicted, tried and convicted as if he were the principal felon: Act of March 31, 1860, sec. 44, P. L. 440. Tony Vitale, the appellant, was indicted as a principal for the murder of Tony Collata, but was tried as an accessory before the fact and found guilty of murder of the first degree. The principal charged with the actual killing was Rocco Tassone, who was found guilty by a jury in the court below on the same day that this appellant was placed on trial.

On the trial of the appellant the commonwealth called a dozen witnesses for the purpose of proving the guilt of Tassone, the principal, and then offered in evidence for the same purpose the record showing that he had been found guilty by a jury. This record was admitted under objection by the prisoner's counsel, and by the first assignment its admission is alleged as error because no judgment had been entered on the verdict returned against the principal. In his charge to the jury the instruction of the learned trial judge was that the appellant could not be convicted unless the jury found that Tassone was guilty of the murder, and that the prisoner had instigated, or procured, or counseled, or commanded him to commit it. The jury were further told that Tassone had been indicted for the murder of Collata and had been convicted by a jury in this court of murder in the first degree." This, in effect, was saying to the jury that the principal charged with the crime was guilty of it, but that was a vital question of fact to be established by competent evidence.

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At the present term of the court, in Commonwealth v. Minnich, we had before us the identical question raised by the appellant's first assignment of error, and, in an opinion this day filed in that case by Mr. Justice Stewart, it clearly appears that the said assignment must be sustained, for the reason that judgment

sult in appalling injustice, as a moment's
reflection will show. What must have
been regarded by the jury-especially
under the quoted portion of the charge-
as conclusive evidence of Tassone's guilt
was the record showing the return of
the verdict pronouncing him guilty. His
motion for a new trial, however, might
have prevailed, and he might afterwards
have been acquitted by another jury,
but in the meantime the life of this
appellant, as an alleged accessory before
the fact, might have been taken as a for-
feit to the law for an offense which a
jury subsequently declared had never
been committed by the alleged principal.
It is true that judgment was in due time
entered on the verdict against Tassone,
and it was affirmed by this court: Com-
monwealth v. Tassone, 246 Pa. 543; but
the question of strict law still is, Did the
court below err in admitting incompetent
evidence at the trial of the prisoner?. If
it did, the judgment against him must
be reversed. In State v. Duncan, 28
North Carolina, 98, the situation was the
same as the one here presented, and the
accessory was awarded a new trial.
the course of an exhaustive opinion the
court said, through the learned Chief
Justice Ruffin: "The judgment against
the prisoner, Duncan, must be reversed.
It is true, that we now know that the
conviction of the principal was a due
conviction, as the judgment against him
has been affirmed by ourselves; and, if
this were addressed to our discretion,
as on a motion for a new trial, we might
refuse it, as not advancing the justice
of the case. But the question is one of
strict law-Whether there was error in
admitting incompetent evidence upon the
trial of the prisoner; and if there was an
error committed in that respect, we are
obliged to award a venire de novo."

In

Appellant's complaint of the trial judge's unqualified refusal of the points which are the subjects of the second, third, fourth, fifth and sixth assignments

is not without merit. It is averred by learned counsel for the appellant, and not denied by the commonwealth, that, on the trial of another accessory before the fact, which immediately followed the trial of this appellant, the same points were not refused. As the case must be retried, it may be assumed that if these points should be again presented, the learned trial judge will follow his answers given on the trial of the other accessory. The seventh assignment calls for no discussion.

The judgment is reversed on the first assignment of error, and the record is ordered to be remanded to the court below, together with a copy of this opinion, setting forth the cause of reversal, for further proceeding in the said court, and a venire facias de novo is awarded.

[See following case.]

Commonwealth v. Augustine Vitale,

Appellant.

wealth v. Anthony Vitale, who was indicted and convicted as an accessory to the same crime, the same crime, the principal being Rocco Tassone. [1, 2 and 4]

The Court below overruled the following question in the cross-examination of Charles Sheaffer, called as a juror and affirmed on his voir dire:

"Q. Have you formed an opinion as to the guilt or innocence of the principal Rocco Tassone?" [3]

Verdict of guilty of murder in the first degree and sentence thereon.

Defendant appealed, assigning for error [1, 2, 3, 4] the above, [5, 8, 10, 12, 15, 16, 17] the refusal of certain offers of evidence, [6, 7, 9, 14] parts of the Court's charge, [11] the allowance of certain evidence for the Commonwealth, and [13] the answer to defendant's 14th point.

John E. Malone and B. F. Davis, for appellant.

The three challenged jurors in trying the case of Toney Vitale, the other acces

Murder-Challenge of jurors-Disquali-sory, necessarily passed upon the guilt of

fication of jurors who convicted other accessory.

Jurors who have convicted an accessory of murder have necessarily formed an opinion as to the guilt of the principal and are therefore not qualified to sit as jurors on the trial of another accessory for the same murder.

A defendant on trial for murder, who, being refused three challenges for cause which should have been sustained is thereby forced to use three of his allowance of peremptory challenges against objectionable jurors called, is deprived of a valuable right and should be granted a new trial.

Appeal No. 195 of January Term 1915 by Augustine Vitale, defendant from sentence of O. and T. of Lancaster Co. on a verdict of guilty of murder in the first degree.

(For opinion of Court below on motion in arrest of judgment and rule for a new trial, see ante, 153.)

the principal.

Buch v. Com., 107 Pa., 486.

The guilt of the principal was also part of the Augustine Vitale case. They therefore had formed an opinion in that case and were not qualified to sit.

Staup v. Com., 74 Pa. 458.
Com. v. House, 3 Super. 304.
Ortwein v. Com., 76 Pa. 414.
Com. v. Fisher, 226 Pa. 189.
Turner v. State, 69 S. W. Rep. 774.
Ward v. State, 52 S. W. Rep. 52.

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'If one counsels the commission of a counsel is given does not commit the felony, but the individual to whom such felony, the person who has given the counsel is not liable as an accessory."

Ogden v. State, 12 Wis. 532. 16 L. T. Rep. N. S. 388.

The Queen v. Gregory, I Crown Cases Reserved, p. 77.

"The solicitation to commit murder accompanied by the offer of money as a reward for so doing is an offence at common law.”

On the trial before LANDIS, P. J., the Court below overruled the challenge for cause of Chas. Sheaffer, Cassius W. Shade and Jacob E. Baughman, called as jurors and affirmed on their voir dire, the objection being that these jurors had sat as jurors in the case of Common-misdemeanor."

Com. v. Randolph, 146 Pa. 83.
Same case affirmed, 6 Superior, 405.
Solicitation to commit a felony is a

Com. v. Hutchinson, 6 Super. 405. Stabler v. Com., 95 Pa. 318. Com. v. McGregor, 6 Dist. 343. Penna. v. McGill, Addison Rep., 21. Winters v. Mowrer, 163 Pa. 239. An accomplice should be corroborated. Com. v. Miller, 8 Kulp, 85. Hargrave v. Miller, 16 Ohio, 338. Stoffer v. State, 15 Ohio, 47. "Where the different statements of a witness are inconsistent with each other, or he is directly contradicted in regard to material facts, his whole testimony will be disregarded."

The Santissima Trinidad, 7 Wheaton, 283.

It was error not to permit the contradiction of the testimony of a witness from the notes of testimony before the magistrate.

Com. v. Werntz, 161 Pa., 591.
U. S. v. Ford, 33 Fed. Rep., 861.
Brown v. Com., 73 Pa. 321.

P. & R. R. R. Co. v. Spearen, 47 Pa.

300.

Act of May 23, 1887, R. L. 158, Sec. 3.

John M. Groff, District Attorney and Chas. W. Eaby, Assistant District Attorney, for appellee.

The three jurors objected to had not necessarily formed an opinion as to this defendant from trying the other case and they swore that they had not.

Nothing short of palpable error will justify the reversal of a trial judge in passing on a challenge for cause.

Com. v. Sushinkee, 242 Pa. 406. Com. v. Henderson, 242 Pa. 372. Com. v. Croson, 246 Pa. 536. Flight from the state or neighborhood in which a crime was committed may always be considered by the jury.

Čom. v. Clemmer, 190 Pa. 202. Lanahan v. Com., 84 Pa. 80. "The trial judge did his full duty, in cautioning the jury as to the danger of convicting upon the uncorroborated testimony of an accomplice, and he was not bound to instruct them to acquit in the absence of corroboration, as there is no rule of law which requires such instruction."

Cox v. Com., 125 Pa. 94.
Ettinger v. Com., 98 Pa. 338.

Com. v. Craig, 19 Super. 81.

It is always within the province of the Court to point out the duty of the jury under the law and the evidence if they are left free to act.

Commonwealth v. Romezzo, 235 P. S.

411.

Commonwealth v. Harris, 237 P. S. page 598.

July 3, 1915. Opinion by MR. CHIEF JUSTICE BROWN.

This appellant, a brother of Tony Vitale, the appellant in the preceding case, was indicted as a principal for the same murder He, too, was tried as an accessory before the fact, and, having been convicted of murder of the first degree, his appeal is from the judgment. pronounced upon him.

The first four assignments allege error in the refusal of the learned trial judge to sustain three challenges of jurors for cause. The trial of this appellant followed immediately after that of Tony Vitale. On the same day that the jury was placed on trial. Three of the jurors returned a verdict against him Augustine who had found Tony guilty were called in the case against Augustine, this appellant, and, after each one had answered, under oath, that he had neither formed nor expressed an opinion either in favor of or against the prisoner that would prevent him from rendering a verdict according to the evidence, and that he stood perfectly impartial between the commonwealth and the prisoner, he was passed by the commonwealth and challenged by the prisoner for cause, the cause assigned being that the juror, having sat in the case against Tony Vitale and found him guilty of the murder of Collata, had formed and expressed such an opinion as disqualified him from sitting as a juror in the case against the prisoner.

The challenge of a juror for cause is addressed to the trial judge, and nothing short of palpable error will justify a reversal of his ruling on such a challenge: Commonwealth v. Sushinskie, 242 Pa. 406. The conclusion is not to be avoided that such error was committed in the case now before us, and, if so, the

judgment must be reversed: Staup v. Commonwealth, 74 Pa. 458.

In his opinion overruling the motion for a new trial, the learned trial judge commented on the fact that each of the three challenged jurors, before being passed by the commonwealth, had answered under oath that he had formed no opinion as to the guilt or innocence of the prisoner, but on the trial of this appellant a material fact to be established by the commonwealth was the guilt of Rocco Tassone as the principal. In the charge to the jury they were instructed that the first question for their consideration was whether Tassone was the principal in the crime and had fired the fatal shot, and that it was necessary for them to so find before they could convict the appellant as an accessory before the fact. The three challenged jurors had found and solemnly returned, in the case of the Commonwealth against Tony Vitale, that Tassone was the principal in the crime and had actually committed the murder. A very proper question put by counsel for the prisoner to one of the challenged jurors, and disallowed by the court, was," Have you formed an opinion as to the guilt or innocence of the principal, Rocco Tassone?" The answer of the juror, if he had been permitted to answer, would undoubtedly have been that he had formed and expressed an opinion that Tassone was guilty as the principal, and, if he had so answered, it is inconceivable that he could have been regarded as a competent juror to sit on the trial of the brother of the man whom he had just found guilty of identically the same offense as that charged in the indictment against the appellant. But for the peremptory challenges that remained to the prisoner, the three jurors would have entered the jury box with most solemnly formed and expressed opinions that Tassone was the guilty principal; and yet that was a vital fact to be established by the commonwealth by competent evidence on the trial of the appelannt. "It was a part of the Commonwealth's case-a necessity of the situation to prove the guilt of the principal before the accessory could be convicted": Buck v. Commonwealth, 107

Pa., 486. When the opinior. of a juror upon a vital question in a case involving life, in which he is called to serve, has been formed upon evidence heard by him as a juror on another trial involving the same question, such opinion becomes so fixed a belief that it would be wrong to receive him: Staup v. Commonwealth, supra. He would not enter the jury box with an unbiased and pure mind, as white paper on which to write the legal evidence": Zell v. Commonwealth, 94 Pa., 258. This is too obvious for further discussion.

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As the three jurors, unsuccessfully challenged for cause by the prisoner, did not serve, it is contended that he was not harmed, and this view is expressed by the court below in denying the motion for a new trial. If the prisoner was deprived of any of his rights by the court's refusal to sustain the challenge for cause, he was substantially injured. In compelling a defendant charged with a capital offense to use a peremptory challenge to save himself from a juror obviously unfit to sit in judgment upon him, and whose challenge for cause ought manifestly to be sustained, he is deprived of one of twenty rights given to him by the law of the land. This is well illustrated by the present case. The prisoner had exhausted all of his twenty challenges before the twelve jurors were selected. and, when one of them was passed by the commonwealth, he was accepted by counsel for the prisoner, with the remark "we have no challenges." On this appeal his learned counsel say that by those words they meant that their peremptory challenges were exhausted, and, as they had no legal cause to challenge the juror, they were compelled to accept him, though they felt he ought not to have served. Be this as it may, it stands out as a fact that the prisoner was deprived of his right to peremptorily challenge the juror by the ruling of the court on the three challenges for cause, which ought to have been sustained. The right of which he was thus deprived, given to a prisoner by the humanity of the law, is a most valuable one. Of it high authority has said: "In criminal cases, or at least in capital ones, there is, in

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