A careful consideration of tbe voluminous record in this case has convinced us that there is no error therein of which the prisoner has any just reason to complain. The trial appears to have been so conducted by the learned president of the eighth judicial district, who specially presided thereat, as to secure for the accused a fair and impartial trial. We find nothing in any of his rulings that would justify us in reversing the judgment of the law pronounced on the verdict; nor is there anything in either of the specifications of error that requires discussion.
It was conclusively shown, and is not denied, that as John Schwindt, the deceased, was returning home from his work in company with a fellow workman, he was followed by the prisoner, whose presence was unknown to them, and shot in the back with a pistol at short range. The ball entered near the tenth dorsal vertebra and, passing through the spinal column, partly severing the cord, lodged in the vertebra on the opposite side. It was claimed by the commonwealth, and the evidence tended strongly to prove, that the pistol shot wound thus inflicted by the prisoner was the cause of Schwindt’s death within less than ten days thereafter. Without attempting to collate or further refer to the evidence on which the commonwealth relied for a conviction of murder of the first degree, it is quite sufficient to say it was not only abundant, and practically undisputed, but it tended strongly to prove that a wilful, deliberate and premeditated murder was committed by the prisoner. While the shooting was not, nor could it be, denied by him, he claimed that he mistook the deceased, John Schwindt, for his twin brother, William Schwindt, with whom he had been on unfriendly terms for some time, and whose life, as shown by the testimony, he had repeatedly threatened. Conceding what —according to the evidence — was doubtless the fact, that by mistake the prisoner shot the wrong person, that, of course, could not in any degree lessen his guilt. The grounds of defense relied on were, (1) insanity of the prisoner at the time of the shooting and prior thereto, and (2) that John Schwindt’s death resulted not from the - pistol shot wound, but from the surgical operation performed by the physicians in their efforts to extract the pistol ball, etc. Some testimony was introduced for the purpose of sustaining each of these positions. The case *476was fairly submitted to tbe jury, on all the evidence properly before them, in a clear, comprehensive and fully adequate charge, in which they were distinctly and accurately instructed by the learned trial judge, not only as to the questions pertaining to the two lines of defense above stated, but also as to all the questions presented by the evidence on both sides. Referring to the allegation, relating to the second ground of defense, that a lost drainage tube (inserted by the surgeons in attendance to relieve their patient, etc.) “ found its way into the spinal canal and caused the death of John Schwindt,” the learned judge said: “ But suppose it did, the prisoner cannot escape by showing that death was the result of an accident occurring in an operation which his felonious act made necessary. There is no pretense that the drainage tubes were not required, or that they were improperly placed.” This was clearly correct; and, without specially referring to them, the same remark is applicable to the instructions given in relation to both lines of defense. The jury, under proper and adequate instructions, refused to find in favor of the prisoner on either ground, and we have no doubt they were fully warranted by the evidence in so doing.
There was no error in denying the motion to recall first the juror that had been last “ stood aside.” The action of the court in requiring the “ stood aside ” jurors to be recalled in the order in which they had been “ stood aside ” was in conformity to the practice which has long prevailed in this country and in England: 1 Thomp. on Trials, sec. 49«. We have never known the practice in this state to be otherwise. The action •of the court, therefore, deprived the prisoner of no right; nor could it have done him any injury.
The second to fifth specifications, inclusive, are based on a misapprehension of the record. The order in which a trial shall proceed must be left largely to the discretion of the court. The prisoner having taken the stand in his own belialf was open to cross-examination by the commonwealth. He was recalled during the time the rebuttal testimony of the commonwealth was being offered, not to give evidence in rebuttal, as his counsel asserts, but for further cross-examination. The other matters ■complained of do not require special notice. There is no merit in either of them. Nor is there any merit in the sixth specification. In disposing of the motion for a new trial the learned *477judge says the court’s attention was not called to the alleged remarks of the district attorney at the time. Unless that is done remarks of counsel cannot be considered: Com. v. Windish, 176 Pa. 167. The remarks complained of are not properly on the record. They are embodied in the reasons for a new trial, but the discretion of the court in refusing a new trial is not reviewable in such circumstances as appear in this case : Alexander v. Com., 105 Pa. 1.
While in cases of conviction of capital offenses the fact of the separation of the jurors further than is necessarily required to enable them to perform their duties as such, and under the care of a sworn officer, creates a presumption of improper influence ; but it is a presumption which the commonwealth may rebut by clear and satisfactory evidence: Moss v. Com., 107 Pa. 267. In this case, the evidence was amply sufficient for that purpose.
The action of the court in permitting private counsel to close the case for the commonwealth furnishes no ground for reversal. The general conduct of a trial is largely within the discretion of the judge presiding; and it is only when some abuse of that discretion is clearly shown, that an appellate court will interfere. Nothing of the kind appears in this case.
The subject of complaint in the eighth and last specification has already been noticed. The charge of the court in relation thereto was quite as favorable to the prisoner as he could reasonably ask.
Several of the assignments of error are destitute of merit; and, as already stated, there is nothing in any of them that would justify a reversal of the judgment. They are all overruled.
The judgment of the court below is affirmed, and it is ordered that the record be remitted for the purpose of execution.