Appeal, No. 38, May T., 1964, from judgment of Court of Oyer and Terminer of Dauphin County, Jan. T., 1963, No. 61, in case of Commonwealth of Pennsylvania v. Albert Finnie. Judgment affirmed.
Charles E. Friedman, with him Herbert S. Cohen, for appellant.
John A. F. Hall, Assistant District Attorney, with him Martin H. Lock, District Attorney, for Commonwealth, appellee.
Before Bell, C.j., Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. CHIEF JUSTICE BELL
Albert Finnie pleaded guilty to an indictment charging him with the murder of George Washington Ford.
The three-Judge Court (sitting without a jury), after hearing the evidence, found defendant guilty of murder in the first degree. After hearing all pertinent facts about the crime and the criminal, and after arguments of counsel, the Court fixed the penalty at life imprisonment. From the judgment and sentence of the Court defendant took this appeal.
Appellant makes three contentions. His principal contention is that he was so drunk that he did not have and could not form an express intent to kill, which in a non-felony murder case is necessary for first degree murder: Commonwealth v. Carroll, 412 Pa. 525, 194 A.2d 911; Commonwealth v. Gooslin, 410 Pa. 285, 189 A.2d 157. In other words, appellant contends that he could not be found guilty of murder higher than murder in the second degree. He also contends that he did not kill Ford but merely shot in the air to scare him. Finally, he contends, equivocally, that he shot Ford in self-defense induced by "reasonable" fear of what Ford might do to him.
We shall briefly summarize the testimony in the light most favorable to the Commonwealth: Commonwealth v. Kirkland, 413 Pa. 48, 195 A.2d 338.
The murder occurred at about 6 a.m. in the vicinity of Sixth and Delaware Streets, Harrisburg. Ford was found lying on the street dead from two bullet wounds.
Finnie and Ford were in the J. & L. Restaurant, which is located in Harrisburg near the corner where the murder occurred. Several other persons were in the restaurant at that time, but since they were admittedly drunk, it is unnecessary to discuss what they remembered. Appellant and Ford had been drinking and got into some kind of an argument about pouring and cutting concrete. They called each other some vile names. The owner of the restaurant ...