Appeal, No. 287, Jan. T., 1960, from judgment of Court of Quarter Sessions of Philadelphia County, Nov. T., 1959, No. 639, in case of Commonwealth of Pennsylvania v. Fletcher Lemons. Judgment reversed.
Irvin Siegel, for appellant.
Arlen Specter, Assistant District Attorney, with him Charles Durham, Assistant District Attorney, Paul M. Chalfin, First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE MUSMANNO.
The appellant, Fletcher Lemons, was convicted of voluntary manslaughter in the Court of Quarter Sessions of Philadelphia County before a court sitting without a jury. At the termination of the presentation of the Commonwealth's evidence, the defendant entered a demurrer but the court ruled that it would dispose of it at the end of the trial. Eventually dismissing the demurrer, the court found the defendant guilty, as indicated, and sentenced him to a term of imprisonment of not less than 2 1/2 years nor more than five years. The defendant appealed.
The record does not sustain the verdict. On the evening of October 17, 1959, the defendant Fletcher Lemons was attending to his duties as bartender in the
Village Bar located at 12th and Reno Streets in Philadelphia when, at about 8 o'clock, a William Patterson entered the bar and demanded that the defendant Fletcher Lemons pay him $8 which he owed him. Lemons replied that he did not have the money but that he was being paid at midnight. Reviling the defendant, Patterson left but returned an hour or so later brandishing a revolver and renewing his demands for his $8, accompanying his exhortations with threats of "I will kill you."
In a few minutes Patterson pocketed his revolver whereupon Lemons obtained a revolver of his own which he kept close to the cash register. Armed with this weapon, he ordered Patterson to give up his revolver. Patterson seemed to comply with Lemons' request and proceeded to place his revolver on the bar, but, suddenly, he seized Lemons, who was still holding his revolver, by both wrists and a struggle followed. In that struggle, Lemons' revolver was discharged and the bullet struck an innocent bystander, Thomas Howze, passing through his shoulder and finally finding lodgement in the heart of another innocent bystander, Thomas Wearing.
The Commonwealth called four witnesses who testified to what occurred in the Village Bar on the fatal night. With some insignificant discrepancies in testimony they fundamentally all related the same story that the defendant not only did not intentionally fire the weapon which killed Wearing, but that he was in no way the instigator of the altercation which resulted in the shooting.
Thomas Howze, the man who was shot in the shoulder, testified: "Q. What next happened? A. At the time I walked over to the bar I asked Fletcher what was the argument about. Patterson reached up and grabbed Fletcher and they were both ...