The defendant was indicted for the murder of Vincent Lucasovich, a fellow workman in a coal mine, and was duly convicted of murder of the second degree. The cause of death was a pistol-shot wound, inflicted about midnight in a vital part. Death ensued in about forty-eight hours thereafter. Defendant was arrested about three hours after the fatal shot was fired; and, when confronted by deceased, the latter accused him of being the guilty agent. Shortly afterwards, the dying declarations of the deceased were taken by a justice of the peace ; and their admission in evidence constitutes the first specification of error. In view of the circumstances, the evidence was rightly admitted.
The second specification, alleging error in the learned judge’s instructions as to the burden of proof, cannot be sustained. The same remark is applicable to the remaining specifications, chai'ging error in adopting the theory of the commonwealth, suggesting possible inferences to be drawn by the jury, and in not giving due weight to the defendant’s evidence, etc. When considered as a whole and in connection with the testimony properly before the jury, the learned judge’s charge is a correct and adequate presentation of the law applicable to the facts which the testimony tended to establish. It was quite as favorable to the defendant as it should have been. We find nothing in it of which he has any just reason to complain.
A careful examination of the record has failed to disclose anything that would justify us in sustaining either of the specifications of error.
Judgment affirmed, and it is ordered that the record he remitted to the court below, to the end that its sentence may be executed.