Commonwealth v. Davis

Citations

• 266 Pa. 245
• 110 A. 85
• 1920 Pa. LEXIS 543

Syllabus

<p>Criminal law — Murder—Twice in jeopa/rdy — Illness of juror — Epilepsy — Lapses of consciousness — Contagious disease — Influenza —Discharge of jury.</p> <p>1. Where a jury impaneled and sworn in a murder case is discharged on account of the illness of a juror, the prisoner cannot, when called for trial a second time, plead former jeopardy, where it appears that the juror’s illness was of a character to seriously impair his power to discharge his duties, as there were momentary lapses of consciousness, and that his continued service would involve imminent risk to himself and danger of communicating a contagious disease, epidemic at the time, to his fellow jurors.</p> <p>Criminal law — Murder—Charge—Use of word \concludes” for word \presumes.”</p> <p>2. On a murder trial the court cannot he convicted of error in charging that “the law concludes that when a man uses a deadly weapon a number of times as by firing more than one shot, he has more time to consider the circumstances and to form an intention to kill, and his mind is more likely to he fully conscious of the design to kill.” In such a case the use of the word “concludes” instead of the word “presumes” is immaterial, and especially is this the case where it appears that the court immediately before and after the passage quoted, used such language in connection with the word “presumes” that the jury could not have been misled by the language of which complaint was made.</p> <p>Criminal law — Murder—Sentence—Practice, Supreme Court— Referring case bach for resentence — Act of June 19, 1918, P. L. 5£8.</p> <p>3. Where the sentence in a murder case is not fully in accordance with the requirements of the Act of June 19, 1913, P. L. 528, the record will be referred back to the court below for the entry of a sentence in a form approved by the Supreme Court.</p> <p>Appeals — Practice, Supreme Court — 'Assignments of error — Statement of questions involved.</p> <p>4. Where an assignment of error is not pressed at th