Appeal, No. 59, Jan. T., 1950, from judgment and sentence of Court of Oyer and Terminer of Bucks County, Feb. Sessions, 1948, No. 37, in case of Commonwealth of Pennsylvania v. Harry Zietz. Judgment and sentence affirmed.
G. Coe Farrier, with him I. Louis Rubin, for appellant.
Willard S. Curtin, District Attorney, with him Donald W. Van Artsdalen, Assistant District Attorney, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE HORACE STERN
A jury found the appellant, Harry Zietz, guilty of murder in the first degree and imposed the death penalty. A description of the events leading up to the crime is set forth at length in the opinion of this Court in Commonwealth
and sentenced him to life imprisonment. Foster and Zietz, tried before a jury, were both found guilty of first degree murder with the death penalty; from the judgment entered thereon and the sentence imposed Zietz now appeals.
Several questions raised by appellant merit but little discussion. He claims that the court failed to define second degree murder and manslaughter and limited the verdict of the jury to first degree murder or acquittal. As a matter of fact, however, the court, after defining the crime of common law murder, read to the jury the statutory provisions which define and distinguish the two degrees of murder, and the court instructed the jury that, if they found the defendant guilty of murder, they should state in their verdict whether it was murder in the first or the second degree; the court properly added that if they found that the crime was murder committed in the perpetration of a robbery their verdict should be murder in the first degree. No definition of the crime of manslaughter was required because there was no evidence which would have justified a conviction of that offence: Commonwealth v. Sutton, 205 Pa. 605, 608, 609, 55 A. 781, 782; Commonwealth v. LeGrange, 227 Pa. 368, 76 A. 63; Commonwealth v. Newson, 277 Pa. 48, 52, 120 A. 707, 708; Commonwealth v. Hadok, 313 Pa. 110, 115, 169 A. 111, 113. The only duty that the court had to observe was to refrain, as it did, from giving an imperative instruction which would take from the jury their right to determine the degree of the crime of murder: Commonwealth v. Sheets, 197 Pa. 69, 79, 80, 46 A. 753, 754; Commonwealth v. Sutton, 205 Pa. 605, 608, 55 A. 781, 782; Commonwealth v. Kovovic, 209 Pa. 465, 468, 469, 58 A. 857, 858; Commonwealth v. Le-Grange, 227 Pa. 368, 76 A. 63; Commonwealth v. Morrison, 266 Pa. 223, 230, 109 A. 878, 880.
Another complaint of appellant is that the court, having sentenced Capone to life imprisonment, did not
act with equal justice in sustaining the penalty of death fixed by the jury in appellant's case. Apart from other answers that might be made to this argument it is sufficient to point out that Capone at the time of the occurrence of the crime was 16 years of age, whereas Zietz was 18, that Capone, unlike Zietz, was found by the court to be mentally subnormal, a psychiatrist who examined him having testified that his intellectual age was probably around the twelve year level; moreover, not only did Zietz take a leading and aggressive part in the holdup whereas Capone remained ...