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COMMONWEALTH v. FOSTER (03/20/50)

March 20, 1950

COMMONWEALTH
v.
FOSTER, APPELLANT



Appeal, No. 63, Jan. T., 1950, from judgment and sentence of Court of Oyer and Terminer of Bucks County, Feb. T., 1948, No. 37, in case of Commonwealth of Pennsylvania v. Harold Foster. Judgment and sentence affirmed.

COUNSEL

C. William Freed, Jr., with him Donald B. Smith, 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.

Author: Stearne

[ 364 Pa. Page 289]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

Harold Foster (appellant) and Harry Zietz were indicted (with David Darcy and Felix Capone) for the murder of William Kelly on December 22, 1947. They

[ 364 Pa. Page 290]

    were tried jointly by a jury, Judge BOYER, of Bucks County, presiding. The jury rendered a verdict of guilty of murder in the first degree, fixing the penalty of death. Appellant has appealed assigning trial errors.

The homicide resulted in the course of a "holdup" or armed robbery of a tap room or tavern located in Feasterville, Bucks County. No question is raised concerning the identity of appellant or his participation in the robbery. A confession which has not been repudiated was offered in evidence. A recital of the details of this crime may be found in Commonwealth v. Darcy, 362 Pa. 259, 261, 66 A.2d 663, et seq., and need not be again repeated. The conviction and sentence of David Darcy, a co-defendant, was affirmed by this Court. A certiorari to the United States Supreme Court was refused.

Appellant assigns four trial errors: (1) The learned trial judge failed to define second degree murder and manslaughter (2) That it was error for the trial judge to say that the patrons of the barroom "would have had the right to kill the defendants" (3) Admission in evidence of other crimes to "determine what kind of men the defendants are", and (4) in charging the jury that if they found defendant guilty of murder in the first degree "the death penalty would be the just and proper punishment for the crime." We will consider these objections seriatim.

There is no merit in the contention that the learned trial judge did not define the degrees of murder and permit the jury to fix the degree. After a careful charge reciting the principal testimony, the judge read to the jury the provisions of the Act of March 31, 1960, P.L. 382 (as re-enacted in The Penal Code 1939, June 24, P.L. 872, 18 PS 4701), as follows: "'All murder which shall be perpetrated by means of poison, or by lying in ...


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