Appeal, No. 117, March T., 1956, from judgment of sentence of Court of Oyer and Terminer of County of Greene, September T., 1954, No. 1, in case of Commonwealth of Pennsylvania v. James Morris Fletcher. Judgment affirmed; reargument refused February 18, 1957.
A. J. Waychoff, for appellant.
Glen R. Toothman, Jr., District Attorney, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
Defendant was found guilty of murder in the first degree and sentenced to life imprisonment for the slaying of Gerald Tanner. Defendant did not take the witness stand. He filed a motion in arrest of judgment and a motion for a new trial. He contended (1) that there was not sufficient evidence to prove the corpus delicti; (2) that the verdict was against the evidence and against the weight of the evidence and against the law; (3) that a new trial should be granted for the additional reason that two jurors should have been disqualified, and (4) that a new trial should be granted for alleged prejudicial remarks made by the District Attorney during his closing argument to the jury. We shall consider the first two contentions together.
The jury could have found from the Commonwealth's evidence and from the reasonable and legitimate inferences therefrom that the Commonwealth proved beyond a reasonable doubt the following facts:
Defendant and Gerald Tanner, the deceased, on the evening of June 11, 1954, had a fist fight outside a barroom over a married woman, Elsie, with whom each had been having relations. As a result of this fight Elsie and the defendant were arrested and put in jail. The same evening they were released, and they returned to Bobtown, Greene County. Later Elsie left defendant to go to her home with Tanner.
During the fight between the defendant and the deceased, the defendant, said, "I'll get you if it's the last thing, I'll show you." After the defendant returned to Bobtown late that evening, he was seen by several witnesses at a beer garden known as Nassar's. There he discussed the fight and said: "Someone is going to pay for this." The Commonwealth then proved that the defendant returned in his automobile to his store at Bobtown about four A.M.
In the early hours of June 12th, Tanner returned from Elsie's home to his home at Cabbage Flats in Monongahela Township, Greene County. While standing before his kitchen door at about four A.M., Tanner was shot and killed from ambush by a shotgun. Mrs. Alice Tanner, his mother, saw him alive, heard a gunshot, saw him fall and held him in her arms as he died. Mrs. Jean Tanner, widow of the deceased, heard the shot, placed a a pillow under her husband's head and immediately called a doctor.
Bernice Fletcher, the defendant's wife, testified that the defendant first came home at about four A.M., got the keys for the store, left his home, and returned again about four-thirty A.M. Defendant was arrested at eight A.M. on the morning of June 12, 1954, at his home at Bobtown, Green County, which was approximately three miles from Tanner's home. At the time of his arrest he gave vague as well ...