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COMMONWEALTH v. NOVAK (03/16/59)

March 16, 1959

COMMONWEALTH
v.
NOVAK, APPELLANT.



Appeals, Nos. 166 and 182, Jan. T., 1958, from judgment of Court of Oyer and Terminer and General Jail Delivery of Delaware County, March T., 1955, Nos. 340 and 341, in case of Commonwealth v. Edward Novak. Judgment of sentence affirmed; reargument refused April 27, 1959.

COUNSEL

Walter Stein, with him Mervyn R. Turk, and Berger and Gelman, for appellant.

Paul R. Sand, Assistant District Attorney, with him Raymond R. Start, District Attorney, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.

Author: Bell

[ 395 Pa. Page 201]

OPINION BY MR. JUSTICE BELL

A jury found defendant guilty of murder of the first degree and fixed the penalty at death in his trial for the murder of Katherine Jones, and also found him guilty of murder of the first degree and fixed the penalty at death in his trial for the murder of Ella K.

[ 395 Pa. Page 202]

Jones, Katherine's daughter. Defendant filed a motion in arrest of judgment and a motion for a new trial which were dismissed by the lower Court. The lower Court thereupon sentenced him to death. From the judgment and sentence defendant took this appeal.

Because this is a capital case we shall discuss every one of defendant's contentions which may have any possible merit.

The first question presented was whether the Commonwealth made out a prima facie case, and if so whether the verdict was against the weight of the evidence.

Defendant and Ella Jones were engaged to be married. They, with her mother, were living at 500 Fern Street, Darby. There was considerable friction in the home for a month. According to defendant, Ella and her mother kept reminding him that he was on probation and that they could have him arrested at any time. He became incensed when Ella and her mother allowed a coffee pot to burn; he became incensed when Ella's mother insisted on bringing old furniture into the house, and when she sold some tools, although they were her property. Because of their almost constant arguments, defendant demanded that Ella convey her interest in the property to him, which she did on February 1, 1955. On the evening of that day, Ella had defendant arrested on charges of drunk and disorderly conduct, threatening to kill and breach of the peace. At the hearing before the Justice of the Peace, Ella testified that defendant had kicked her on the leg and had threatened her several times with a gun which he had in the house. After they returned home, they continued to argue during the next two days.

On the morning of February 4, 1955, defendant and Ella again became involved in an argument over his recent arrest. Ella refused a reconciliation. When

[ 395 Pa. Page 203]

    she started to leave the house to go to work, defendant ran to a closet in the living room, got his revolver and fired seven bullets into her head and body. Many of the shots were fired with the muzzle of the gun within 24 inches of the victim's body, and one at the distance of 18 inches. Since the cylinder of the revolver held but five cartridges, the jury could well have found that the defendant must have paused to reload his gun. Ella's death was caused by one or more of these bullets. Defendant then went to the rear of the house and shot Ella's mother as she was standing on the landing just outside the kitchen door calling for help. He fired two bullets into Mrs. Jones. Her death was caused by one or both of these bullets. The murder of Mrs. Jones was witnessed by Mrs. Grace Wood, a neighbor who was walking past the house at the time; there were no eyewitnesses to the shooting of Ella Jones.

Officers arrived quickly and were met at the front door by the defendant who immediately said "I killed them." Defendant added "I have no gun." The officers then went into the house and found Ella Jones lying on the floor of the living room moaning in pain. Mrs. Katherine Jones was found lying in the snow at the bottom of the steps leading down from the kitchen door. She was apparently dead. The women were rushed to the hospital and were pronounced dead on arrival. Defendant gave detectives several false leads as to what he had done with the gun. It was found after many hours of search secreted in an automatic gas heater in the basement.

There is not the shadow of a doubt as to defendant's guilt. These were two cruel, heartless, savage murders. Defendant willfully, deliberately and premeditatedly got a gun and shot and killed Ella Jones and her mother after numerous threats and after Ella

[ 395 Pa. Page 204]

    refused a reconciliation. Defendant alleges that the killings were without the slightest motive and because of that and because he was in a state of intense excitement, the killings could not amount to murder in the first degree. "Evidence to prove motive, intent, plan or design are admissible [citing cases].": Commonwealth v. Homeyer, 373 Pa. 150, 159, 94 A.2d 743. However, "proof of motive is always relevant but never necessary.": Commonwealth v. Malone, 354 Pa. 180, 188, 47 A.2d 445. Moreover, in this case the motivation was obvious, namely, hatred and resentment. Mrs. Freedman, a witness for defendant, whose home defendant had visited on February 2nd, testified that defendant called Ella's mother a foul name, said he "hated her guts" because she was keeping Ella away from him, and said "I ought to kill her." Defendant testified on the witness stand "There was murder in my heart the day she [Ella] had me ...


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