Appeal, No. 162, Jan. T., 1955, from judgment of the Court of Oyer and Terminer of Bucks County, Jan. T., 1954, No. 157, in case of Commonwealth of Pennsylvania v. George Capps. Judgment affirmed.
William M. Power, with him William F. Heefner, for appellant.
Donald W. VanArtsdalen, District Attorney, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
George Capps, defendant-appellant, a married man aged twenty-two years, was convicted by a jury of murder
in the first degree, with penalty fixed at death, for the rape and killing of Marta Gibbons, a fifteen year old school girl, on the night of January 22, 1954, at an isolated location near Curtis Lake, Falls Township, Bucks County. The Commonwealth contends that the killing was either wilful, deliberate and premeditated, or in the perpetration of a common law forcible rape, or both. As in Commonwealth v. Prenni, 357 Pa. 572, 55 A.2d 532, whatever actually happened on that evening was solely within the knowledge of defendant and the victim. Defendant at the time of his arrest made and signed a voluntary statement to the police, which he has not repudiated. There is no contention that his statements and admissions were obtained by threat, coercion, promise, or improper inducement or representation. At the trial, upon the witness stand, defendant repeated his statement and admission. His story is extremely revolting. The victim, a young school girl, lived with her parents across the street from defendant; defendant occupied a home with his wife who, at the time, was pregnant; deceased on the night of the killing had been employed as a "baby sitter" for a neighbor; she was accompanied by her seven year old half-sister; after completion of her task, the two sisters returned to their home; their mother was a patient in a hospital and deceased's stepfather was at work; the sisters were alone in the house when defendant came in; after the small sister had gone to bed, defendant testified that he and deceased fondled each other; fearing the father's return, defendant said that he suggested that they go out in defendant's automobile, to which suggestion he said deceased agreed; that they twice had sexual intercourse in the car; defendant said that deceased removed many articles of her clothing; defendant said he remarked to the child: "Suppose I get you pregnant like I did my wife?"; he
testified that deceased then was sick, vomited, and became hysterical, yelling, crying and stating that she proposed to tell her father what defendant had done to her; as deceased continued to yell and cry defendant said he hit her on the head and caused her to fall to the ground; deceased continued her hysterical crying and yelling, whereupon defendant said he went to the car, took a revolver from under the front seat and shot and killed her, dragged her dead body to a place of concealment, and threw away the gun and also the clothes which he said deceased had discarded.
Counsel for defendant frankly conceded at the argument that the crime of murder in the first degree had been proved by the Commonwealth. Counsel, however, relies upon alleged trial errors in the hope to secure a new trial, wherein defendant might be able to induce another jury to fix the penalty at life instead of death which this jury imposed.
Before reviewing alleged trial errors, the question of murder in the perpetration or attempted perpetration of rape, statutory or at common law, must be considered. The charge of the learned trial Judge was more favorable to defendant than he was entitled to receive. In Commonwealth v. Neill, 362 Pa. 507, 67 A.2d 276, we said (citing Commonwealth v. Exler, 243 Pa. 155, 89 A. 968) that the term "rape" used in the Act making murder committed in the course of a felony murder of the first degree, is limited to rape at common law. This dictum was true under the Act of March 31, 1860, P.L. 382, but it erroneously overlooked the provision of the later Penal Code of June 24, 1939, P.L. 872, 18 PS sec. 1, et seq., which provided (sec. 701): "All murder ...