Appeal, No. 138, March T., 1958, from judgment of Court of Oyer and Terminer of Somerset County, Nov. T., 1957, No. 6, in case of Commonwealth v. Melvin Leroy Boden. Judgment affirmed.
Robert M. Keim, with him Frederick F. Coffroth, for appellant.
Frank A. Orban, Jr., District Attorney, for Commonwealth, appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok, and McBRIDE, JJ.
OPINION BY MR. JUSTICE BELL.
A jury returned a verdict of murder in the first degree with penalty of life imprisonment. Defendant appealed from a judgment and sentence thereon, alleging (a) the usual reasons for a new trial, (b) trial errors, and (c) the Court's refusal of the defendant's point for binding instructions.
Defendant was indicted for arson and for murder. The trial Judge withdrew from the jury the indictment for arson, which requires a person "to wilfully and maliciously set fire to or burn a dwelling house or other building." However, the trial Judge and the lower Court agreed with the jury that the Commonwealth had proved beyond a reasonable doubt that defendant had
committed a willful, deliberate and premeditated murder by setting fire to and thereby killing his wife.
We shall first dispose of defendant's motion in arrest of judgment, considering the evidence, as the law requires us to do, in the light most favorable to the jury's verdict: Commonwealth v. Wright, 383 Pa. 532, 119 A.2d 492; Commonwealth v. Brown, 184 Pa. Superior Ct. 494, 136 A.2d 138.
Defendant and his victim, Mary Growall Burawski Boden, were married in August 1957. They lived in her home in Rockwood Borough, Somerset County, Pa.
George D. Sterner, a neighbor of the defendant, saw smoke coming from the second story of the Boden home at approximately 11:15 a.m. on Sunday morning, November 17, 1957. Shortly thereafter, another neighbor, John M. Barclay, seeing smoke, entered the Boden home to determine whether anyone was inside and immediately went to the second floor believing the Boden's bedroom was located there. He testified: "There was a tremendous amount of smoke upstairs, in fact you couldn't have stayed there too long at one time, after a short period of time I came down again and went back out on the porch..."
When informed by another neighbor who was alarmed by the smoke, that the bedroom was on the first floor, Barclay re-entered the Boden house with another neighbor, Charles Hostetler. The smoke was so thick on the first floor that they proceeded on their hands and knees to the bedroom where, at approximately 11:55 a.m. they discovered Mrs. Boden, still living, lying on the floor between the two beds, smoldering bedclothing and blankets under her, covered by what looked to be a housecoat around the lower part of her body. Moments later firemen arrived and removed ...