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COMMONWEALTH v. DIEHL (12/29/53)

December 29, 1953

COMMONWEALTH
v.
DIEHL



COUNSEL

Paul A. McGinley, Allentown, for appellant.

George J. Joseph, First Asst. Dist. Atty., M. Jack Morgan, Dist. Atty., Allentown, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Ross, Wright anud Woodside, JJ.

Author: Woodside; Gunther

[ 174 Pa. Super. Page 281]

WOODSIDE, Judge.

This appeal involves seven counts tried jointly by a jury, four of them felonies. The defendant Roscoe Diehl was found guilty. Motions for a new trial were made and dismissed and sentence was imposed. No evidence was produced by the defendant to contravene the facts as introduced by the Commonwealth.

It appears that the defendant had been in a cafe for several hours and there had an altercation, during which several blows were struck. After the fight the defendant was ejected, went to his home several blocks away, returned to the cafe and fired two shots from a high powered rifle through the front window. These shots did not strike anyone. While fleeing from the scene he attacked police attempting to arrest him. The police followed the defendant to his home and finally

[ 174 Pa. Super. Page 282]

    on to the roof where there was considerable shooting between the officers and him. During the shooting the defendant shot a neighbor who had directed police officers through his house to the roof. The victim was seriously and permanently injured. After being shot the defendant was apprehended. The defense of the defendant was that he was insane at the time of the commission of these acts and as a consequence did not know the difference between right and wrong.

The defendant contends that the Court committed fundamental error in its charge to the jury, and in not having the defendant present when, after the regular court hours, the jury came into court for additional instructions.

The appellant picking out one sentence from a very lengthy charge argues that it amounted to an instruction that the jury was required to find the defendant guilty.

The part of the charge to which the appellant objects is as follows:

'You will and you could either find the defendant guilty in any one or all of those seven cases, or you could find the defendant not guilty in any one or all of ...


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