Appeal, No. 56, Jan. T., 1954, from judgment of Court of Oyer and Terminer of Philadelphia County, Oct. Sessions, 1952 Nos. 498-500, in case of Commonwealth of Pennsylvania v. John Banks. Judgment reversed.
Hubert P. Earle, with him James Francis Lawler, for appellant.
Samuel Dash, Assistant District Attorney, with him Michael von Moschzisker, First Assistant District Attorney and Richardson Dilworth, District Attorney, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
This is an appeal from judgment on a verdict of guilty of murder in the first degree and a penalty fixed at life imprisonment.
Briefly, the Commonwealth's evidence was as follows: Both the defendant and the deceased, Matthew Anderson, lived at 3945 Reno Street, Philadelphia, where, at about 5:30 P.M. on September 27, 1952, the dead body of Anderson was found lying in a pool of blood on the floor alongside a bed in the rear bedroom.
The bed was located approximately 7 feet from the doorway. There were no bloodstains on the landing or on the stairway leading to the room. At about 7:30 P.M. on the same day the defendant was apprehended and on his person was found a fully loaded revolver. On being interrogated by the officers the defendant made a voluntary statement in which he admitted shooting the deceased. He related that when he entered the premises the deceased came out of his room on the second floor and descended three steps; the defendant ascended three steps, leaving six steps between them; thereupon the deceased commenced swearing and displayed an ice pick which he held in his hand, and the defendant then pulled out a gun and shot him. The defendant identified the gun found on his person as the gun used in the killing.
The defendant took the stand the related a different version of the occurrence. He testified that as he reached the third step from the bottom, the deceased was standing on the third step from the top, cursing him; deceased then backed up to the landing as defendant continued ascending the steps, and said: "If you move another step I'll kill you"; and seeing the ice pick held by the deceased, he fell to the wall in fear and the gun went off, killing the deceased.
There was one reversible error committed by the trial judge. The defendant testified that he ascended the stairway and when he reached the top step the deceased sought to kill him with the ice pick which he held in his hand; that he, the defendant, fell toward the wall to prevent being struck by the pick, drew his gun, and, he being scared, the gun went off, killing the deceased. The charge of the court on the law of self-defense was proper, as were the ...