On the evening of January 12, 1930, Vincent Massarelli, shot and killed Bernardino Cameransi, at Marcus Hook, Delaware County, for which he was convicted of murder of the second degree and from sentence thereon brought this appeal. The defendant and the deceased were Italians and resided in the same neighborhood. The former, a widower, had for some time paid undue attention to the latter's wife. This included frequent visits to her home in the absence of her husband and, in August, 1929, culminated in her leaving her husband and becoming a member of the defendant's household. She brought divorce proceedings against the deceased which he resisted and which were pending at the time of the homicide. There was, as might be expected, ill feeling between the men and the evidence indicated that each had made some threats against the other. On the afternoon of the homicide, being Sunday, the defendant, with others, was in a small store and after the deceased entered the former removed a revolver from his pants pocket to his coat pocket, but neither then made any demonstration against the other. Sometime after seven o'clock that evening they met again in the store, when, as shown by the Commonwealth's evidence, the defendant requested the deceased to step out of the store with him. Thereupon the defendant walked out the front door followed by the deceased. When outside they were seen holding on to each other and three shots were fired. The last shot, from the defendant's automatic revolver, killed the deceased. The other shots did not take effect. The Commonwealth's evidence indicated that the three shots were fired by the defendant; while testimony on behalf of the latter was to the effect that the deceased fired the first shot and that the other two were fired by the defendant in self defense. A twenty-two calibre revolver loaded, except one empty chamber and one empty shell, was found under the body of the deceased. *Page 338
The pivotal question was, Who fired the first shot? As to this, a witness for the Commonwealth said he saw the shooting and the shots were fired in rapid succession and the flash of each went from the defendant to the deceased. While the defendant, and three witnesses who claim they were present but who did not appear at the time, said the first shot was by the deceased and that the flash from it was toward the defendant. Some circumstances seem to lend support to the contention of the Commonwealth. For instance, that the defendant asked the deceased to accompany him out of the store, that he immediately left the spot after the shooting and concealed himself for two days, and when he did surrender told the officers his mind had been a blank since the shooting, that he concealed the weapon with which the homicide was committed for some days and falsely told the officers he had thrown it away, and that as a witness in his own behalf he made a bad impression by asserting over and over again that he did not recall when cross-examined as to familiar matters about which he did not desire to remember. Moreover, the evidence is the defendant told the officers that the bullet fired by the deceased passed through his (defendant's) clothes and burned them, whereas their examination disclosed no mark of burn or bullet. That the defendant's revolver had but two empty chambers, when surrendered, proves nothing as to the number of shots he fired as he had ample opportunity to reload.
Taken as a whole, the case was one where the Commonwealth might properly ask for a conviction. To do so, however, it was necessary to challenge the evidence of the defendant and his three witnesses. There was no reconciling their testimony with that for the Commonwealth; hence, the assistant district attorney (herein called the district attorney) told the jury in his closing address that, in his belief, the defense was cooked up [in common parlance, fabricated], at least in part while the defendant was staying at the home of one of his *Page 339 three witnesses immediately following the homicide. Because of this language, which was more than once repeated, the defense asked for the withdrawal of a juror and continuance of the case. This the trial judge refused but said to the jury to leave out the belief of the district attorney.
No error was thereby committed. While a district attorney should avoid stating his personal belief he may properly express his opinion on the evidence narrated in the case: Com. v. Meyers, 290 Pa. 573, 581; 16 C. J. 908. Here, he was discussing the testimony for the defense and he must either treat it as false or abandon the case. Surely a district attorney need not surrender the Commonwealth's case because testimony for the defense is inconsistent with guilt.
Furthermore, the question of the withdrawal of a juror is one largely in the discretion of the trial judge and an appellate court will only interfere to correct a plain abuse thereof. Nothing here occurred to suggest the propriety of so doing. This question needs no further comment as we have fully considered it in recent cases. See Com. v. Del Giorno, 303 Pa. 509, and cases there cited. While an appellate court will not reverse in such case unless the logical effect of the ill-advised remarks of counsel was to create an improper prejudice in the minds of the jurors and thus tend to prevent a fair trial (see Com. v. Davison, 99 Pa. Super. 412), yet it is well to keep in mind that the appellate courts can and will if necessary grant relief to a defendant whose rights have been disregarded by a district attorney. See Com. v. Ronello, 251 Pa. 329; Com. v. Shoemaker, 240 Pa. 255.
The defendant's twelfth request could not be affirmed because it assumes that the deceased was undertaking to shoot the defendant at the time of the homicide; while under the evidence that was a seriously disputed question. The trial judge explained this matter to the jury in refusing the request. A request can never be affirmed *Page 340 which assumes the truth of a disputed question of fact: Wust v. Erie City Iron Works, 149 Pa. 263; Jackson v. P. R. R. Co.,228 Pa. 566; and see Laginsky v. McCollough, 280 Pa. 286; Dodson Coal Co. v. New Boston Land Co., 276 Pa. 452.
We have referred to the only questions discussed at the argument or suggested by the statement of the questions involved and find no error.
The judgment is affirmed and the record is remitted that the sentence may be carried out.