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COMMONWEALTH v. CAREY (06/27/51)

June 27, 1951

COMMONWEALTH
v.
CAREY, APPELLANT



Appeal, No. 284, Jan. T., 1950, from judgment of Court of Oyer and Terminer of Montgomerey County, June T., 1949, No. 110-1, in case of Commonwealth of Pennsylvania v. Ollie Carey. Judgment affirmed.

COUNSEL

Julian W. Barnard, with him James N. Peck, for appellant.

Bernard E. DiJoseph, Assistant District Attorney, with him J. Stroud Weber, District Attorney, for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Stearne

[ 368 Pa. Page 158]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

Ollie Carey was convicted by a jury of murder in the first degree with the penalty fixed at death. Defendant was indicted for the murder of Thomas J. Matthews, a

[ 368 Pa. Page 159]

    police officer, who was killed by gun shot wounds while in pursuit of defendant, whom the officer sought to place under arrest. His motion for a new trial having been overruled, defendant appeals from the judgment and sentence.

The reasons assigned by defendant are (1) The evidence does not establish that the killing was committed in the perpetration or attempt to perpetrate burglary or in an attempt to escape therefrom (2) Alleged prejudicial answer by the trial judge to a question propounded by the jury relating to the effect of recommendations by the jury with respect to their proposed verdict and (3) Refusal by the trial judge to affirm defendant's fifth request for point of charge which related to the requisite elements of circumstantial evidence.

Defendant was represented by able trial lawyers appointed by the court. Judge DANNEHOWER fairly and patiently conducted the trial which required four days. The charge to the jury was comprehensive and accurate, and which prompted defendant's counsel to remark: "... [the charge] is the finest, the most logical, best expressed Charge I have ever heard delivered to any jury.'"

The controlling facts are so fully narrated in the charge and in the opinion refusing the new trial that we will not restate them in detail.In summary: defendant, a former convict, on Saturday, June 25, 1949, burglarized the Blizzard Home in Rydal, Abington Township, and on Monday, June 27, 1949, burglarized the Hauptfuhrer residence, both being in the same neighborhood; the houses were closed for the summer; he carried away from both homes all the loot which he could pack in two stolen suit ...


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