Appeals, Nos. 23 and 28, April T., 1956, from judgments of sentence of Court of Quarter Sessions of Somerset County, Sept. T., 1955, Nos. 59 and 60, in case of Commonwealth v. Edgar Eugene Mitchell. Judgments reversed.
W. L. Kimmel, with him Leland W. Walker and Walker & Kimmel, for appellant.
Frank A. Orban, Jr., District Attorney, for appellee.
Before Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ. (rhodes, P.j., absent).
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This is an appeal by Edgar Eugene Mitchell after his conviction by a jury on two indictments, one charging
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pointing and discharging deadly weapons and the other assault and battery, aggravated assault and battery, and assault with intent to kill, both indictments having been consolidated for the purposes of trial. Defendant's demurrer to the evidence was overruled by the trial judge. Following verdicts of guilty, motions in arrest of judgment under the Act of June 15, 1951, P.L. 585, 19 PS § 871, and for a new trial were refused. On the charge of pointing and discharging deadly weapons defendant was sentenced to pay the costs of prosecution and further sentence was suspended for a period of eighteen months during which time he was placed on probation. On the charges of assault and battery, aggravated assault and battery and assault with intent to kill defendant was sentenced to pay the costs of prosecution and to undergo imprisonment in the Allegheny County workhouse for twelve months. This appeal followed.
The only question on this appeal is whether the evidence is sufficient to support the verdict. However, "It must be borne in mind that on appeal the evidence must be considered in the light most favorable to the Commonwealth", Com. v. Ricci, 177 Pa. Superior Ct. 556, 564, 112 A.2d 656.
There is little conflict in the testimony of the Commonwealth's witnesses and that of the defendant and his witnesses concerning the events culminating in the shooting of James Miller on the night of August 3, 1955 on the property of the defendant located in Listonburg, Addison Township, Somerset County. James Miller and his wife had been living at the home of the defendant, a cousin of James Miller, for approximately three or four weeks prior to August 3rd. In the afternoon of that day Miller and the defendant had gone to pick berries. They met another cousin of Miller's
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named Richard Groff and, abandoning berry picking, the three men visited several taverns where they all drank beer. They eventually arrived at the home of the defendant's father where an altercation ensued between Miller and the defendant over the failure of the latter's car to operate properly. Miller admitted he challenged the defendant to a fight and when he reached into the car to grab the defendant he was struck by a small claw hammer. Defendant's father called the police but Miller and his cousin Groff left and headed for defendant's home on foot. When Miller arrived at the defendant's home he testified he found the defendant already there sitting in a chair inside the front screen door with a rifle in his hands. Though Miller testified that defendant threatened to shoot him he went inside the house and when he asked the defendant for the rifle Mitchell "released it right away." Miller then retaliated for the threats Mitchell had made by holding him at bay, pointing the gun at the defendant, arguing with him, threatening him, and demanding that he, Miller, and his wife, be driven to their home in Duquesne, Pa. Sometime later the defendant escaped by a ruse and fled from his home, ran into a neighbor's house and, fleeing through the back door continued on into the woods in the rear of the properties. Miller, in pursuit with the loaded rifle, went to the top of a slate dump nearby but, unable to see the defendant, returned to defendant's home and ...