Argued October 6, 1927.

OPINION BY MR. JUSTICE SCHAFFER, November 28, 1927:

Defendant, sentenced to death for the crime of murder of the first degree, asks us to review the record of his conviction, alleging that it was brought about by errors committed on his trial.

The facts connected with the killing are not in doubt. The only disputed matter is whether defendant in firing the shot which killed deceased did so with an intent to kill or only to wound him.

Appellant and his victim were colored men, the latter the keeper of a barber shop in the vicinity where appellant lived. There appears to have been some real or fancied grievance in the mind of defendant against the deceased owing either to something which the latter had said about him or his wife or to the failure to pay a small debt.

On the evening of the murder, defendant visited the shop of deceased two or three times, but did not find him in. On his last visit, deceased was there. Appellant entered the shop, carrying a Winchester rifle. Deceased was in the act of lathering a customer whom he intended to shave. Without speaking, defendant brought the rifle to his hip and fired. Deceased fell to the floor and defendant fired two more shots. He then left the shop, made his escape and was apprehended in New York some months later. Persons who entered the shop after the shooting did not find deceased there but discovered him lying on a bed in a rear room. The post mortem showed that only one bullet struck him.

Defendant gave no adequate explanation of his criminal act. He testified that he had not shot at deceased with the intention of killing him but had aimed at his arm to wound him, so that he could not grasp a pistol for which he was reaching. All the other testimony negatives such a purpose on the part of deceased. He was engaged in lathering the customer who was reclining in the chair and had no opportunity to do anything after becoming aware of defendant's presence before the shot was fired. Defendant attempted no explanation of the two succeeding shots, saying he did not remember firing them. Which one of the three shots struck deceased was not clearly established. From the course the bullet took in his body, there is some indication that it may not have been the first one fired.

The initial matter we are asked to examine is the adequacy of the charge, appellant's position being that the trial judge did not fully instruct as to the evidence showing the murder was only of the second degree, that the testimony produced by the Commonwealth indicating a first degree homicide was unduly stressed while that of defendant tending to prove the lesser degree was only casually mentioned. Our reading of the charge does not leave the impression on our mind that it did not fully cover the evidence on both sides. The disputed fact was whether defendant fired the shots with an intent to kill, as the Commonwealth contends, or as defendant himself alleges only to wound the deceased. Appellant's counsel argues the proposition on the basis of his client's intent in firing the first shot which he assumes was the fatal and only one to be considered. Even if it was the one causing death the jury had a right to take account of the other two, quickly following the first, as indicating what was the slayer's intent: Com. v. Cavalier, 284 Pa. 311, 316. The firing of the additional ones negatived the idea that defendant had shot only to wound and to prevent the deceased from reaching for a pistol. Aside from his own statement that he shot, not with intent to kill, but for the purpose of wounding, there is nothing in the record to so indicate. Every other fact and circumstance in the case points to a deliberately planned and executed intentional slaying.

It is complained by the second assignment of error that the instruction therein set forth (see Reporter's notes) virtually withdrew from the consideration of the jury a possible verdict of murder of the second degree. While what the court said is not a correct statement of the law as applied to the facts, because (there being no evidence of an accidental killing) if the defendant without any intent to take life or without premeditation, wilfulness or deliberation killed the deceased, he was not entitled to an acquittal, but was guilty of murder of the second degree; it however did the defendant no harm as in plain language elsewhere in the charge the jury was instructed as to the different degrees of murder and as to their right to fix the degree. This was sufficient: Com. v. Welch, 291 Pa. 40, opinion handed down herewith.

Complaint is made in the third assignment wherein the judge charged the jury, "It is a question of what he did do, and you must determine what he intended to do by what he did do, and render your verdict accordingly," that this was virtually a mandatory instruction on the question of intent. Defendant buttresses this assignment on Com. v. Chapler, 228 Pa. 630. In that case the court instructed the jury in substance (p. 635), "that the fact that defendant used a deadly weapon was conclusive of the question of the degree of guilt," and qualified a point of the defendant, "Murder in the first degree is limited to wilful, deliberate and premeditated killing, and the presumption from the use of a deadly weapon arises no higher than murder in the second degree," with instructions which amounted to its virtual denial. In that case the court told the jury that if the accused used the weapon as described in the testimony, they "would be obliged to fix the degree" as first degree. The jury in the case at bar was left entirely free to fix the degree and the punishment. In Com. v. Zec, 262 Pa. 251, we said (p. 257), "Where one intentionally uses a deadly weapon upon a vital part of the body of another, there is a legal presumption of an intent to kill which cannot be rebutted by the assailant's own testimony that he did not so intend. . . . . . But whether the assailant intended to use the weapon upon a vital part is a question of fact and he may deny that he intended to so use it, or that he intended to take life." When the whole charge here is read, not the particular excerpt which this assignment brings in question, it is quite apparent that the jury knew they were the ones who were to pass upon the question of the accused's intent and the grade of his crime, not that the judge was determining these questions for them. The charge must be read as a whole and excerpts taken therefrom must be read in connection with the context: Com. v. Winter, 289 Pa. 284.

The fourth assignment complains that the judge instructed the jury that if the intent of the defendant was not to kill with the first shot, but if he made up his mind between the first and second shots to kill, then the ingredients necessary to constitute murder of the first degree were shown. Defendant's counsel argues this assignment on the proposition that it was the first shot that killed the deceased. As before stated, it is not certain as to which was the fatal shot. They were all for the jury's consideration in determining the intent of the slayer.

Other assignments are mere repetitions of these which have already been considered based upon the proposition that it was an abuse of discretion in the court not to grant a new trial. There was no abuse of discretion and therefore these assignments are without merit.

We have read the entire record as required by the mandate of the Act of February 15, 1870, P. L. 15, section 2, and find present in it all of the ingredients necessary to sustain the jury's finding.

The assignments of error are overruled, the judgment is affirmed and the record is remitted to the court below for the purpose of execution.