Appeal from judgment of Court of Oyer and Terminer and General Jail Delivery of Chester County, May T., 1964, No. 104, in case of Commonwealth of Pennsylvania v. Henry Francis Pavillard.
John J. Duffy, with him Lentz, Cantor, Kilgore & Duffy, for appellant.
John S. Halsted, Assistant District Attorney, with him A. Alfred Delduco, District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Cohen. Mr. Justice Jones joins in this dissenting opinion.
On September 16, 1964, Henry Francis Pavillard was indicted for the murder of his sister-in-law, Doris F. Pavillard.*fn* On February 17, 1965, the jury returned a verdict of guilty of murder in the second degree. Defendant moved for a new trial which was denied by the lower Court, and the Court imposed a judgment of sentence of not less than five nor more than ten years, plus a fine. From this judgment of sentence defendant appeals to this Court alleging certain errors in the charge of the lower Court.
The evidence introduced at trial showed that on June 7, 1964, a witness, Mrs. Ann Hanft, observed the defendant driving around in his car with a female companion in the seat next to him, whom he seemed to be holding by the hair. Mrs. Hanft later observing the defendant parked by the side of the road, asked him whether he needed medical help for his companion. Defendant replied that he had a very sick woman and that medical help was certainly needed. Mrs. Hanft led the defendant to the office of Doctor Neilson Matthews and the woman, later identified as Doris, was carried into the doctor's house. Doctor Matthews testified that when he examined Doris she was already dead, and told defendant that there was nothing he could do for her. Doctor Matthews testified that while waiting for the police to arrive, defendant told him that Doris had either been playing with or handling
the gun and that it went off. It was later discovered that Doris was dead as the result of a bullet wound in the back of her neck.
A 22-caliber pistol was found in defendant's car under the front seat on his, the driver's, side. Defendant later stated to the police that Doris shot herself in the back of the neck and that the gun went off, but that he didn't know what had happened. In a subsequent statement, which he made to the police, which was transcribed but not signed, he changed the version somewhat and stated that as he was driving he saw Doris raise the gun, he thought in his direction, and as he reached for it a struggle ensued and she shot herself. This statement was later introduced at the trial by the District Attorney.
At his murder trial, defendant took the stand in his own defense and testified that parts of his previous statements to the police were not accurate, and, more particularly, he denied that he had grabbed the gun and denied that he had any knowledge of the shooting until he first heard the shot. Finally, the defendant produced evidence that on at least three prior occasions Doris had unsuccessfully attempted suicide.
On the basis of all the above-mentioned evidence the trial Judge charged the jury on the law of murder in the first and second degrees and also the law with respect to suicide. The jury, after deliberating the issue, returned a verdict, we repeat, of guilty of murder in the second degree.
In this appeal defendant contends that it was error (1) not to charge the jury on the law regarding homicide by misadventure (mistake), and (2) not to charge the jury on ...