Appeal, No. 212, March T., 1953, from judgment of Court of Oyer & Terminer of Erie County, Sept. Sessions, 1952, No. 1, in case of Commonwealth of Pennsylvania v. Oscar McGrew. Sentence and judgment affirmed; reargument refused March 10, 1954.
John M. Wolford, for appellant.
Damian McLaughlin, District Attorney, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
Defendant was convicted of murder in the first degree and the jury fixed the penalty at death. He killed his 3 year old stepson Douglas under very unusual circumstances.
Defendant and Mary Nell McGrew were married in 1948. Their married life was stormy -- one week or month would be filled with love and the next with dissension and fighting. Defendant frequently threatened to kill his wife and on at least two occasions they separated due to his excessive drinking, gambling and adulterous conduct with other women. Defendant and his wife finally separated in 1951, although frequently thereafter each of them sought a reconciliation.
On May 15, 1952 the defendant, about four o'clock in the morning, entered a room in his father-in-law's house where Mary Nell McGrew and her children were sleeping. When she woke up, defendant was standing beside her bed holding a pistol in his hand. He told her not to raise her voice, that he had come to kill her. She pleaded with him not to do so and defendant told her he had nothing to live for; that he loved her and
the children and that he was going to kill them all and then kill himself.
Defendant remained in the room with his wife until about seven o'clock in the morning during which time she pleaded for her life and they twice had "marital relations." Throughout the period of his stay there, defendant retained possession of the gun except during the two occasions just mentioned. The two parties talked at great length and defendant finally agreed not to kill his wife if she would consent to go with him at eleven-thirty that morning to New Rochelle, N.Y., although he had no money and no job. When she accepted this offer, defendant then announced that he was taking Douglas with him as a hostage to insure her good faith. He told her that if she called the police he would kill the child.
The defendant left his father-in-law's house about seven o'clock in the morning taking Douglas with him. Mrs. McGrew immediately ran down to the apartment of her parents and told them what had happened. The police were then called and Mrs. McGrew was taken to a magistrate where a warrant was sworn out for the defendant's arrest.
The defendant, upon leaving his wife's house, borrowed an automobile from a friend, stating that the child was sick and had to be taken to a doctor. His whereabouts thereafter were not known until about eight-thirty that morning when he appeared at the home of John Cooley, 801 East 18th Street, Erie, Pa., a witness for the Commonwealth, and requested that breakfast be prepared for the ...