Commonwealth v. Eisenhower, 37 A. 521 (Pa. 1897)

Dr. J. O. Biddle was immediately sent for, and on the following morning, February 18, about the hour of nine o’clock, arrived at the house of the deceased, and, after maldng an examination, concluded that the cause of the paralysis was due either to a pressure .upon the spinal column or an injury to the cord, and at once informed the family or the physicians in attendance that the only chance the deceased had for his life was to remove the p. 472obstruction if it could be, or remove tbe cause if possible. On tbe same day an operation was performed by Dr. Biddle, and it was found that the bullet in its passage bad severed tbe spinal cord about half, which wound, of itself, according to tbe testimony of Dr. Biddle, was necessarily fatal. He testified that tbe cause of death was inflammation of tbe membranes of tbe spinal cord caused by tbe bullet. Schwindt died on tbe evening of tbe 26th of February, about the hour of nine o’clock.

In appellant’s history of tbe case it is stated that appellant was locked out of bis bouse one night by bis wife, and after-wards William Schwindt and be went to tbe bouse together and tbe door was opened by the wife, and they were both admitted into tbe room, where they sat talking and laughing together p. 473until the defendant fell asleep on the floor, leaving William •Schwindt and the defendant’s wife alone in the room, that Eisenhower awoke and found the light in the room turned down and his wife sitting in Schwindt’s lap; that defendant immediately jumped up and he and Schwindt got into a tussle in which Schwindt fractured one of the defendant’s ribs, and then ran from the house as did also the wife and children, remaining away from the house all that night and part of the next day; that from that time on defendant and his wife had frequent quarrels and separations, she teasing and twitting him about other men. She had him arrested several times for assault and battery which cases were always settled before going to court, and she finally succeeded in drivmg him away from the house; that defendant is an ignorant man; that he was employed as a teamster around the mines; that on the afternoon of February 17th, or thereabouts, he was going down the main street of Shenandoah when he met his little boy with whom he had a long conversation in a bakery store where he had taken him to buy candy; that he inquired about his family and asked the boy if he did not want him to come home, to which the boy replied that he did, but his mother had forbidden him to talk to Iris father; that he bade his little son goodbye with tears in his eyes; that his mind at this time was wandering, and while in this condition he met and shot John Schwindt, who, in falling, said, “ He has shot the wrong man; ” that defendant stood staring at deceased for several minutes, then turned and walked up an embankment at the side of the road and down to and upon the main street, where he surrendered himself to the officers.

It was conclusively shown, and is not denied, that as John Schwindt, the deceased, was returning home from his work in company with a fellow workman, he was followed by the prisoner, whose presence was unknown to them, and shot in the back with a pistol at short range. The ball entered near the tenth dorsal vertebra and, passing through the spinal column, partly severing the cord, lodged in the vertebra on the opposite side. It was claimed by the commonwealth, and the evidence tended strongly to prove, that the pistol shot wound thus inflicted by the prisoner was the cause of Schwindt’s death within less than ten days thereafter. Without attempting to collate or further refer to the evidence on which the commonwealth relied for a conviction of murder of the first degree, it is quite sufficient to say it was not only abundant, and practically undisputed, but it tended strongly to prove that a wilful, deliberate and premeditated murder was committed by the prisoner. While the shooting was not, nor could it be, denied by him, he claimed that he mistook the deceased, John Schwindt, for his twin brother, William Schwindt, with whom he had been on unfriendly terms for some time, and whose life, as shown by the testimony, he had repeatedly threatened. Conceding what —according to the evidence — was doubtless the fact, that by mistake the prisoner shot the wrong person, that, of course, could not in any degree lessen his guilt. The grounds of defense relied on were, (1) insanity of the prisoner at the time of the shooting and prior thereto, and (2) that John Schwindt’s death resulted not from the - pistol shot wound, but from the surgical operation performed by the physicians in their efforts to extract the pistol ball, etc. Some testimony was introduced for the purpose of sustaining each of these positions. The case p. 476was fairly submitted to tbe jury, on all the evidence properly before them, in a clear, comprehensive and fully adequate charge, in which they were distinctly and accurately instructed by the learned trial judge, not only as to the questions pertaining to the two lines of defense above stated, but also as to all the questions presented by the evidence on both sides. Referring to the allegation, relating to the second ground of defense, that a lost drainage tube (inserted by the surgeons in attendance to relieve their patient, etc.) “ found its way into the spinal canal and caused the death of John Schwindt,” the learned judge said: “ But suppose it did, the prisoner cannot escape by showing that death was the result of an accident occurring in an operation which his felonious act made necessary. There is no pretense that the drainage tubes were not required, or that they were improperly placed.” This was clearly correct; and, without specially referring to them, the same remark is applicable to the instructions given in relation to both lines of defense. The jury, under proper and adequate instructions, refused to find in favor of the prisoner on either ground, and we have no doubt they were fully warranted by the evidence in so doing.

The second to fifth specifications, inclusive, are based on a misapprehension of the record. The order in which a trial shall proceed must be left largely to the discretion of the court. The prisoner having taken the stand in his own belialf was open to cross-examination by the commonwealth. He was recalled during the time the rebuttal testimony of the commonwealth was being offered, not to give evidence in rebuttal, as his counsel asserts, but for further cross-examination. The other matters ■complained of do not require special notice. There is no merit in either of them. Nor is there any merit in the sixth specification. In disposing of the motion for a new trial the learned p. 477judge says the court’s attention was not called to the alleged remarks of the district attorney at the time. Unless that is done remarks of counsel cannot be considered: Com. v. Windish, 176 Pa. 167. The remarks complained of are not properly on the record. They are embodied in the reasons for a new trial, but the discretion of the court in refusing a new trial is not reviewable in such circumstances as appear in this case : Alexander v. Com., 105 Pa. 1.