Appeal, No. 69, March T., 1958, from judgment of Court of Oyer and Terminer and General Jail Delivery of Indiana County, June T., 1957, No. 3, in case of Commonwealth of Pennsylvania v. Harry (Bud) Gates. Judgment affirmed.
G. S. Parnell, Sr., with him G. S. Parnell, Jr., and Parnell and Parnell, for appellant.
Donald M. Miller, Special Assistant District Attorney, with him J. Murray Buterbaugh, District Attorney, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE ARNOLD
The defendant was indicted and tried for the murder of his neighbor and landlord, Louis Turk. The jury returned a verdict of murder in the first degree and fixed the penalty at life imprisonment. After refusal of his motion for new trial, he now appeals from the judgment and sentence.
Defendant assigns numerous reasons in support of his appeal, raising the following questions: (1) Was the evidence sufficient to justify the verdict? (2) Were there reversible errors in the admission and rejection of testimony? (3) Was the alleged after-discovered evidence sufficient to require grant of a new trial?
"'Under the Act of February 15, 1870, P.L. 15 [19 PS § 1187], it is our duty to review both the law and the evidence and determine whether the ingredients necessary to constitute first degree murder have been proved. If there is competent evidence to support the verdict we cannot usurp the function of the jury and reverse merely because it might be contended they should not have believed the witnesses produced on behalf of the Commonwealth'": Commonwealth v. Watkins, 298 Pa. 165, 167, 168, 148 A. 65. (Italics supplied). "... The sufficiency of the evidence must be tested according to the Commonwealth's evidence": Commonwealth v. Wright, 383 Pa. 532, 536, 119 A.2d 492. Thus, in relating the facts, we must take as a verity the believable evidence of the Commonwealth; and so considered, we have the following: At approximately 8:30 P.M., on the evening of June 14, 1957, Louis Turk died as a result of being shot in the arm and back, while standing in the yard of his home in
Young Township, Indiana County. Shortly after noon, of the same day, defendant had gone to the deceased's home and asked for him. The victim's wife informed defendant that he was working in the field. The defendant talked to her for about fifteen minutes, during which time he stated that he wanted to take her and the victim for a ride. He then left, presumably to return to his home, which was across the road from the Turk home and some 235 feet distant therefrom.
The victim's son and daughter-in-law, John and Dorothy Turk, lived next door to the double house owned by the victim and occupied on one side by George Horn and on the other side by the defendant. At approximately 5:15 defendant approached the victim's son, John Turk, who was then working in his garden, and proceeded to be quarrelsome and abusive toward him and his wife, Dorothy Turk. Particularly he bitterly complained about the victim raising his rent. This colloquy ended by the Turks entering their home. At approximately 8:15 P.M., according to Mary Turk, wife of the victim, defendant came again to their home and talked for several minutes about an argument which he had had with their son and daughter-in-law. When admonished by Mary Turk that he should not engage in such arguments, he took a pistol from his pocket and declared that he was "so mad I pretty near kill them." When she again told him to refrain from bothering them, he then pointed the pistol toward her and, in her words, declared "I kill you." Thereupon the victim requested him to leave, and after defendant repeated his displeasure over the increased rent, he walked out, followed by the victim. Upon arriving at the berm of the road at the end of the walk leading thereto from the house, he turned and shot the victim in the arm. The victim turned his back upon him, calling for help, and at this point defendant shot
him in the back. He then fired at Mary Turk, who was standing in the doorway of their home, and struck her in the neck. Following this, he returned to his home, obtained his truck, and drove past the Turk home at a slow rate of speed. All of these incidents of shooting were observed not only by the victim's wife, but also by their son and daughter-in-law, John and Dorothy Turk. Their identification of defendant was positive and without conflict. In addition, George Horn, defendant's neighbor, also testified to the fact that he talked to defendant outside his home at some time beginning with "ten or fifteen minutes after 8:00," during which time the defendant related the argument which he had engaged in with John and Dorothy Turk. He also testified that he left to go back into his own home to view "The Life of Riley," a program televised at 8:30 P.M.
Defendant was arrested but denied at the trial that he had committed the crime. He also produced several witnesses who testified to seeing him at a point several miles away at about the time of ...