Appeal, No. 307, Jan. T., 1960, from judgment of Court of Oyer and Terminer and General Jail Delivery of Philadelphia County, Sept. T., 1959, No. 1073, in case of Commonwealth of Pennsylvania v. James J. Thomas, also known as James S. Thomas. Judgment reversed.
Leo Thomas Connor, with him James Francis Lawler, for appellant.
Stanley M. Schwarz, Assistant District Attorney, with him Arlen Specter, Assistant District Attorney, Paul M. Chalfin, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for Commonwealth, appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE EAGEN.
The defendant, James Thomas, appeals from a judgment of sentence following his conviction, after trial by jury, of murder in the second degree.
On August 27, 1959, Thomas lived in the Eastwick section of Philadelphia and rented space near his home to two families of gypsies who resided in trailers. Dennis John, nine years of age and a child of one of these families, on the afternoon of that date was riding his bicycle in front of the doorway of Thomas' home when he was struck by gunfire from a shotgun held by Thomas as he stood in the doorway of his home. Dennis John died as the result of these shotgun wounds.
Thomas was indicted by the grand jury of Philadelphia County on two bills of indictment, one of which charged murder and the other of which charged involuntary manslaughter. The district attorney, over
Thomas' counsels' objection, elected to, and insisted upon, trying the defendant only on the bill of indictment which charged murder. In this he was sustained by the trial court which overruled the motion of defendant's counsel that both indictments be consolidated for the purposes of trial.
The trial then proceeded before a court and jury in the Court of Oyer and Terminer and General Jail Delivery of Philadelphia County, and Thomas was found guilty of murder in the second degree. After such verdict motions for a new trial and arrest of judgment were refused, Thomas was sentenced to seven and a half to fifteen years in a state correctional institution and this appeal was taken.
A study of the record renders it hard to believe that malice on the part of the defendant existed when this unfortunate fatal shooting occurred. At most, the evidence to sustain such a finding was thin and feeble. Malice is a necessary ingredient of murder and its existence must be established beyond a reasonable doubt: Com. v. Bolish, 381 Pa. 500, 113 A.2d 464 (1955); Com. v. Malone, 354 Pa. 180, 47 A.2d 445 (1946). The evidence does strongly indicate that the shooting ...