Appeal, No. 73, Oct. T., 1958, from judgment of Court of Quarter Sessions of the Peace of Northampton County, June T., 1955, No. 75, in case of Commonwealth v. Lawrence J. Reina. Judgment affirmed.
Michael von Moschzisker, with him George F. Coffin, Jr., for appellant.
Edward G. Ruyak, District Attorney, with him Andrew L. Herster, Jr., Assistant District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
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This is an appeal from the judgment of sentence imposed by the court below after a jury found the defendant guilty of involuntary manslaughter. The case arose out of an incident which occurred on June 10, 1955, in which the death of Lewis Nunn was caused after he had twice shouted an obscenity at defendant while the latter was driving by with his young son in the lad's pony cart. The Commonwealth's evidence was that the defendant jumped out of the cart and came directly across the street to where decedent was and gave the decedent an uppercut which caused him to fall over backwards and strike the back of his head on the sidewalk. Shortly thereafter the defendant and a patrolman tried to help the decedent but he slipped from their grasp and bumped his forehead upon the pavement. The post-mortem examination revealed that the cause of death was a cerebral contusion and that the lesion which directly contributed to death was the major one on the back of the head. There was a fracture of the skull which started at the back of the head and went forward. The witnesses for the Commonwealth and for the defense contradicted each other on the following issues: (a) whether the defendant jumped from the pony cart and hurried directly across the
[ 186 Pa. Super. Page 119]
street, and assaulted the decedent as soon as he reached decedent; or whether defendant alighted from the pony cart and, proceeding at a normal pace at all times, walked to the corner of Sixth Street and Northampton Street, pausing there to watch his boy and talk to Hahn, then walked down to Herster Street, pausing to watch the boy again and talk to DeWees, and then walked over to decedent when decedent and Anthony called him. (b) Whether defendant struck decedent although decedent had not raised his hands from his side or made any other movement; or whether defendant threw a block with his hand or arm after the decedent brought his arm up as though he was going to strike the defendant an uppercut blow. The jury by its verdict resolved both of these questions against the defendant.
The first contention of the appellant is based upon the following exception to the court's charge: "I further except to his Honor's statement to the jury that the question as to who was telling the truth, and they were to determine who was telling the truth; I except to that for the reason that I think if they don't believe either side, they can still reach a verdict without determining who was telling the truth." The defense relies principally upon the case of Com. v. Colandro, 231 Pa. 343, 350, 80 A. 571, to sustain its position. In that case the Court said: "It was error to tell the jury that self-defense was the only issue, and to eliminate the possibility of manslaughter; and again, it was error to say that it was necessary for the defendant to satisfy the jury that his version of the shooting was correct. In a murder case the jury are not bound to accept the version of the commonwealth or that of the defense; it is their duty to consider all the testimony and to make up their minds therefrom as to the facts. It was possible in this case that the jury might have found
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that there was a certain amount of truth in the evidence produced by the commonwealth and some truth in that produced by the defense, but that neither side was wholly to be believed. On this theory, the jury might have believed the story of the threats to take defendant's life, and that he was put in great fear by such threats; that when he saw Rocco coming toward him it raised a passion of terror in his mind, and he shot under the control of that passion. Yet, at the same time, they might not have believed that Rocco had crossed the fence and advanced as far as the defendant's kitchen door, or that he had actually fired pistol shots into the room. Under such a state of facts the prisoner would have been guilty of manslaughter and not of murder." Appellant also cited the cases of Com. v. Marcinko, 242 Pa. 388, 89 A. 457; Com. v. Miller, 313 Pa. 567, 170 A. 128; Com. v. Flax, 331 Pa. 145, 200 A. 632; Com. v. Steele, 362 Pa. 427, 66 A.2d 825. An examination of these cases will reveal that in each case the defendant was being tried on a murder charge. The court took away from the jury the opportunity of finding the defendant guilty of manslaughter. This may not be done under the law of this Commonwealth. That was the real error which the appellate court was endeavoring to correct in each of those cases. What was said by the appellate court as to the right of the jury to disbelieve all or any part of the testimony presented by the Commonwealth or the defendant must be related to the major problem there ...