Appeal, No. 261, Jan. T., 1948, from judgment and sentence of Court of Oyer and Terminer of Montgomery County, September Sessions, 1947, No. 11, in case of Commonwealth of Pennsylvania v. Andro Broeckey. Judgment and sentence reversed.
Samuel Kagle, with him Milton Jacobson and Charles Blasband, for appellant.
Roger B. Reynolds, Assistant District Attorney, with him J. Stroud Weber, District Attorney, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Stearne and Jones, JJ.
OPINION BY Mr. Justice DREW
The jury found Andro Broeckey, defendant, guilty of murder in the first degree and fixed the penalty at life imprisonment. He has appealed from that judgment and sentence.
Broeckey resided in Phoenixville, Pennsylvania. Esther Hayes lived there with him from December, 1946, until July, 1947, when she went to live with John Jacauyies in the basement of a farm house near Oaks, Montgomery County. Defendant learned of her whereabouts and on September 3, 1947, went to the home of Jacauyies and she agreed to return to him. The following day they went to Philadelphia, but she returned to Jacauyies' home that evening and he went to Phoenixville. On September 6, 1947, Jacauyies and Esther Hayes went to Phoenixville and met defendant. They spent some time there and in the early afternoon the three returned to Jacauyies' home. Jacauyies drank quite heavily and become very much under the influence of liquor. Defendant, however, drank very little and was not intoxicated. About two-thirty or three o'clock in
the afternoon, Esther Hayes' thirty year old son, Nicholas, who was living with her, left the house to do some chores. His mother, who had a few drinks of wine, had gone into another room to sleep. When Nicholas returned he found defendant standing in the bedroom in a very nervous state. Jacauyies had been killed by a heavy blow on the left side of the head and his body was lying on the bed, in a pool of blood, with his head partly covered by a sheet.
Nicholas asked defendant what had happened, and he replied that he and Jacauyies had had a fight. When the police arrived he told them that two men came to the house, argued with Jacauyies over money and then killed him. A little later he said to them: "Now I tell the truth. Yes, I killed John. He stole my woman. I have been looking for John for five weeks." When brought before a Justice of the Peace later, he said: "Esther Hayes my housekeeper, she was for six months and she my cook, and she left home five weeks ago. And I was looking for her. I find her at Oaks. She was at home of John. I told others when I find her with anyone else I was going to kill him. I said to John 'I spent lot money on this woman. You have plenty guts to take her away from me. I spent money for a home.' John said, 'You son-of-a-bitch, how you find me?' As he said that, he grabbed the glass [out of which he had been drinking whiskey], and I grabbed the club behind the kitchen stove and hit him over the head and killed him instantly."
The next day the police found a heavy hickory club, 31 inches long and 5 3/4 inches in circumstance, among high weeds some distance from the house. Defendant identified this club as the one he had used. Doctor Simpson, the coroner's physician, who performed an autopsy, and was called by the Commonwealth, stated that it was his ...