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COMMONWEALTH v. SMITH (01/02/62)

January 2, 1962

COMMONWEALTH
v.
SMITH, APPELLANT.



Appeal, No. 5, Jan. T., 1962, from judgment and sentence of Court of Oyer and Terminer and General Jail Delivery of Adams County, Aug. T., 1960, No. 5, in case of Commonwealth of Pennsylvania v. Elmo Smith. Judgment and sentence affirmed.

COUNSEL

Gilbert P. High, with him Joseph P. Phelps, Jr., for appellant.

Vincent A. Cirillo, Assistant District Attorney, with him Harold W. Spencer, District Attorney, for Commonwealth, appellee.

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

Author: Bell

[ 405 Pa. Page 457]

OPINION BY MR. CHIEF JUSTICE BELL.

Elmo Smith, age 39, was convicted by a jury of first degree murder. The jury after hearing in accordance

[ 405 Pa. Page 458]

    with the Act of June 24, 1939, as amended by the Act of December 1, 1959, P.L. 1621, all the evidence pro and con to show what manner of man Smith was, in order to determine the penalty, fixed the penalty at death.

This was an atrocious, brutal, inhuman rape and murder of Maryann Mitchell, a 16 year old girl. There is no need to relate the sordid, gruesome details. Defendant was described by his psychiatrist as a sexual psychopath. Defendant a few days after his arrest signed a 17 page confession and took the police along the murder route and reenacted the crime. Maryann's battered, beaten and ravished body was found, two days after she had failed to come home from the movies, in a desolate gully in Whitemarsh Township, Montgomery County, Pennsylvania.

Four psychiatrists, two for the Commonwealth and two for the defendant, all agreed that defendant was not insane at the time he committed the crime.

Defendant makes no contention that the verdict was unsupported by adequate competent evidence, and he alleges only one error of law. The evidence to support the jury's verdict of first degree murder was overwhelming. Defendant contends that this Court should reduce the verdict from death to life imprisonment (1) because the jury abused its discretion and (2) because of the trial Judge's answer to a question put to him by a juror.

This Court has repeatedly stated that the verdict of a jury cannot be changed or reduced by this Court because the legislature provided by the Act of May 14, 1925, and reiterated it in the Act of June 24, 1939, and again in the amendment of December 1, 1959, that "whoever is convicted of the crime of murder of the first degree... shall ...


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