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COMMONWEALTH v. NELSON (07/02/59)

July 2, 1959

COMMONWEALTH
v.
NELSON, APPELLANT.



Appeal, No. 50, May T., 1959, from judgment of Court of Oyer and Terminer of Dauphin County, June T., 1958, No. 1, in case of Commonwealth of Pennsylvania v. Mary Ellen Nelson. Judgment affirmed. Indictment charging defendant with murder in the first degree. Before HERMAN, J. Verdict of voluntary manslaughter returned, defendant's motions for new trial and in arrest of judgment denied and judgment of sentence entered. Defendant appealed.

COUNSEL

William M. Gross, with him Stuart M. Neely, for appellant.

John A. Roe, Assistant District Attorney, with him H. F. Dowling, District Attorney, for appellee.

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

Author: Bell

[ 396 Pa. Page 360]

OPINION BY MR. JUSTICE BELL

Defendant was indicted for the murder of her husband, Joseph E. Nelson, hereinafter referred to as Nelson, and was convicted of voluntary manslaughter. Defendant was sentenced on December 18, 1958 to pay a fine of $5 and to be committed to the State Industrial Home for Women for an indeterminate sentence.

On March 19, 1958, defendant was in her home at 1022 South 9th Street, Harrisburg, watching television. Nelson came home about eleven o'clock. After some argument, Nelson struck at her with a poker but missed. He then caught her and beat her. As she stooped to pick up her glasses, Nelson hit her with a poker causing a severe injury to her eye. She ultimately lost the sight of her eye. Defendant went upstairs to the front bedroom and closed the door. Thinking Nelson was downstairs, she opened the door. Nelson put his foot in the door and inflicted a knife wound on defendant's arm. Defendant succeeded in closing the door and pushed the dresser against the door. Nelson went downstairs and everything was quiet. Defendant then remembered a pistol in the dresser and got it out. She knew the pistol was loaded and knew how to fire it. The room faced on a city street; it had several windows, and there was a telephone in the room. A roomer, Thomas Miller, age 85, was still in the house, which was part of a double house, and there were neighbors on the other side of the party wall. Defendant could

[ 396 Pa. Page 361]

    have telephoned the police or the neighbors, or could have called to the neighbors, or called out the window for help if she felt she needed help.

Defendant left the safety of her bedroom and started down the stairs with the loaded gun. Nelson apparently heard her coming and started up the stairs with the poker. Defendant raised the pistol and fired a bullet into her husband's head, killing him instantly. She testified twice that she remembered pulling the trigger and firing the gun, but if her husband had not come up the stairs she would never have raised it. When Nelson tumbled to the foot of the stairs she screamed for Tom Miller. She told Miller she believed she had killed her husband. She then asked Miller to call the hospital and get an ambulance. She testified that she did not intend to kill her husband and she wished he was living today.

The Commonwealth's evidence consisted principally of the written confession which defendant gave to the police, and which all parties admit was similar to her testimony on the witness stand. Defendant in her confession said "My husband, Joseph Edward Nelson, and me got along fine until about a year ago, and then little arguments started, but they never amounted to too much." In her direct testimony she testified that she figured her husband was mad or something the night of the killing, and she did not see him that way before. On cross-examination, defendant admitted that she and her husband had had many arguments, and that during one of these arguments on March 2, 1957 she had shot her husband in the leg when he had picked up a shoe and told her she had to go out with him drinking.

The Court's charge to the jury on the subject of murder and voluntary manslaughter was very fair and exceptionally able, and no objection or complaint is made by defendant to the charge! Defendant alleges four ...


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