Appeal, No. 158, Jan. T., 1952, from judgment of Court of Oyer & Terminer of Philadelphia County, June Sessions, 1951, No. 1224, in case of Commonwealth of Pennsylvania v. Willie Noble. Judgment reversed.
William P. O'Neill, with him Perrin C. Hamilton, for appellant.
Michael von Moschzisker, First Assistant District Attorney, with him Richardson Dilworth, District Attorney, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE BELL
The defendant was found guilty of murder in the first degree and sentenced to life imprisonment. The case turned on whether he murdered Ezekiel Evans or killed him in self defense. The lower Court refused defendant's motion for a new trial and from the refusal of his motion defendant has appealed.
The important facts are as follows: Defendant had been living with Marie Evans for several years. She was a married woman with four children and had been separated from her husband, Ezekiel Evans, for 9 years. In spite of this so-called separation, her husband apparently visited her three room apartment several times each week and frequently spent the night there.
Early in the evening of Saturday, February 3, 1951, defendant, as was his usual practice, came to Marie Evans' apartment. No one was there except her husband. Defendant thereupon left the apartment, but returned, according to his testimony, several times later on in the evening, leaving each time because of the continued presence of Ezekiel. Early the next morning, Viz., Sunday, February 4th, at an undisclosed time, defendant came back, as he started to obtain his overcoat. He was admitted by Ezekiel. Marie Evans was in a drunken sleep in the kitchen. One of the children, Ella Jean Evans, was asleep in a chair in the living room; Ella May Evans, aged 14, and Albert Evans, aged 12, were asleep in the bed in the bedroom. Ezekiel Evans was later found dead, lying along the foot of the bed with his head overhanging the side of
the bed, face down. A pool of blood was on the floor directly under his head.
Ella Jean testified she went to bed about 10:30 or 11 o'clock and at that time her father was on the bed with her sister and brother. "He was laying on the left hand side of the bed, at the foot of the bed". The testimony did not disclose when Ella May and Albert went to bed, but when they did so their father was lying on a couch in the bedroom near the door across from the foot of the bed.
All of the occupants of the apartment denied having witnessed the killing or any struggle. When Albert woke up he saw his father lying at the foot of the bed with a hole in his head, ran into the living room, awakened his sister, looked out the open front window and saw the defendant rounding the street corner. When Ella Jean awoke and saw her father she ...