The Elk County advocate. [volume] (Ridgway, Pa.) 1868-1883, 1875-05-20
CASE OF BARNEY McCUE.
The OPINION AS FILED IN THE SU.
PREME COURT

THE OPINION AS FILED IN THE sU-
PREME COURT,
10 the case Of Barney McCue vs..
The Commonwcalth-error to the court
oi oyer and terminer, iycomlng county
the supreme court Las decided that
the ASST siguments Of eiror iai! to show
any ground tor reversal except of the
sentence OF the court Of oyer and ter
miner. 1t was competent to show that
the prisoner aud the deceased had
visited the same woman aud to follow
this by evidence that Immediately after
the homicide the prisoner referred to
the fact that he had warned the de.
ceased to let her alone, that she would
be a curse to any one, and now his
words had come to pass. Jealousy is
among the thoughts Of the human pas
sions, AID it certainly was !or the jury
to determine, in the abseuce of any
other aSsignable motive, whether it Was
the cause Of the prisoners act. The
evidence shows that The spirit Of hatred
ranked in his bosom when he did be
shooting, which resulted fatally The
evidence OF intoxicatiun is very slight.
The oniy material question is whether
the evidence in the CASE contained the
elements or ingredients of murder in
the first degree. 1t is certainly true
that the commonwealth must establish
the existence Ct these elements, other
wise no presumption arises from the xii.
ling OF All offeuse higher than murder
in the second degree. If there has ap-
peared in the testimony the ingredients
to constitute murder in the first degree,
our power ceases. We do not sit to
hear the case as on motion for new
trial to determine where the weight Of
evidence lies, but "to determine whether
the ingredients necessary to constitute
murder in the first degree shall nave
been found to exist" These being
proved the jury mus. determine the
guilt or innocence OF the prisoner.
The court recites the particulars oil
the shooting and concludes that the act
was clearly unprovoked and ceedlcss.
I he deceased was unarmed, and had
made no threats or demonstration
against McCue. The ingredients OF
murder in the first degree were clearly
established The jury had grounds for
their verdict, and their conclusion that
the prisoner intended to kill, and will
fully and with deliberatiou and premedi-
tatioD shot Deeter, was not irrational or
plainly uniouuded.
While we are ofopinion Therefore that
the elements of the crime found by the
jury existed in the evidence aud that so
far there is no error. There is one
error for which the sentence Of the
court must be reversed. 1t does not ap.
pear from the record that the prisoner
Was asked before sentence why sentence
OF death should not be pronounced upon
him.
This is a fatal error and fleets the
merits OF the case. 1t is necessary TO ask
the prisoner this that he may have al
opportunity, before the sentence o.
death be visited upon him, to plead il
bar of sentence any matter sufficient to
prevent its execution. He may have
found out some good reason why The
trial was not legal, or he may plead I
pardon or supervening insanity. In thi'
case the question may have been askeC
in fact, but as it does not appear on th'
record and is matter of substance, W
must treat it as not having been done.
The sentence will be reversed il
order that the case may be sent. tacl
and an opportunity afforded to tn
prisoner to plead in bar of it, but thi
will not reverse the trial and conviction