Appeal, No. 136, March T., 1949, from judgment and sentence of Court of Oyer and Terminer of Allegheny County, June Sessions, 1947, No. 66, in case of Commonwealth of Pennsylvania v. Howard Bey. Judgment and sentence affirmed.
J. Harry Pershing, with him Adam B. Shaffer and Arthur D. Stevenson, for appellant.
William H. Colvin, Assistant District Attorney, with him William S. Rahauser, District Attorney and Craig T. Stockdale, Assistant District Attorney, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE JONES
The appellant was convicted of murder in the first degree with penalty of life imprisonment. He appeals from the judgment entered on the sentence and assigns for error the lower court's refusal of his motion for a new trial. The reasons, which he continues to press here
as supporting the motion, may be summarized as follows: (1) the trial judge erred in refusing the defendant's motion to withdraw a juror because of an alleged improper statement by the district attorney in his opening to the jury; (2) the trial judge erred in excluding the testimony of a medical witness called by defendant to testify as an expert concerning the alleged effect of a prior chest injury in inducing the defendant's later criminal conduct; (3) the trial judge erred in failing to charge the jury fully on the law of voluntary manslaughter or on the facts relevant thereto; and (4) the trial judge erred in failing to charge the jury adequately on the law of self defense, especially in reference to the continuing effect of the victim's alleged prior threats against the defendant. The errors so ascribed are, to say the least, very superficially grounded as reference to the facts and circumstances preceding and attending the homicide will, in part, reveal.
In the late afternoon of the day of the killing, William D. Larkin, Jr., aged thirty-six, the victim, and six companions were returning by automobile from a funeral home where they had gone to view the remains of a deceased friend. Their immediate destination was the home of one of the group, George Sibbet, a patrolman, on Colmar Street, Pittsburgh. The street, which is on the hillside above Bigelow Boulevard, was steep and unpaved and, at the time here involved, was slippery from recent rain. Its cartway was relatively narrow, not being wide enough to accommodate more than a single car at a time. Stairs and boardwalks along the sides of the street were provided for the use of the pedestrian public. As the automobile was proceeding up Colmar Street, the defendant, twenty-two years old, was walking up the street in the middle of the road. He was accompanied by his brother, aged ten, and another boy, aged fifteen. Although signaled by the automobile's
horn, the defendant refused to move out of the way to let the automobile pass. Bickering and some name-calling ensued, but no physical violence was exerted by anyone. In the end, the automobile, being then unable to make the uphill grade, was backed down the street, turned around and driven to Sibbet's home by a more circuitous route. About the time it arrived there, the defendant and his companions, who had come directly up over the hill on foot, had reached the same locality. The quarreling was renewed at a distance and more epithets applied. The older of the two boys accompanying the defendant threw a stone at the victim's group. Larkin started after the defendant but, before reaching him, was restrained by his own brother and gave up the chase. Again, no physical violence had been done anyone. Larkin and his companions then entered the Sibbet home. After remaining there about half an hour, Larkin, intending to leave for his home for supper, opened the outer door of the Sibbet house onto the porch. Just as he did so, he was hit in the forehead by a thirty-two caliber bullet and fell dead in the doorway. The shot had been fired from a rifle in the hands of the defendant who was standing behind a telegraph pole on the opposite side of the street. After shooting Larkin, the defendant kept up a fusillade, hitting the front door jamb of the Sibbet house and shooting a number of times through the window of the front room where Sibbet had gone to see who was doing the firing. To avoid being hit by the flying bullets, the occupants of the house ...