Appeal from judgment of Court of Common Pleas of Northampton County, Sept. T., 1966, No. 123, in case of Commonwealth v. Earl Johnston.
Lewis Tanner Moore, for appellant.
John E. Gallagher, Assistant District Attorney, with him Charles H. Spaziani, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Justice Jones joins in this dissenting opinion.
Earl F. Johnston was tried before a jury in Northampton County on an indictment charging him with the murder of Charles Pittman, and was found guilty of
voluntary manslaughter. After post-trial motions were denied and a prison sentence imposed, Johnston filed this appeal. We reverse because we conclude that the evidence was insufficient as a matter of law to sustain the conviction.
A brief summary of the pertinent evidence introduced at trial by the Commonwealth is as follows:
During the late afternoon of October 8, 1966, a group gathered for social purposes in a building on a business property of defendant Johnston. Among others, the group included Johnston, Pittman, Mrs. Pittman and Mrs. Wolfe. Strong ill feeling existed between Mrs. Pittman and Mrs. Wolfe, and an argument started between them which culminated in a physical tussle. When the pair were separated, Mrs. Wolfe began to berate Pittman and called him some obscene names. Pittman became angry, drew a knife and threatened to kill her. He chased her from the building and inflicted two knife wounds on her arm as she fled. When he caught up to her, he knocked her to the ground and cut her in the area of the hairline.
Johnston separated the two, led Pittman to his automobile and asked him to leave the premises.*fn1 Pittman and his wife got in the car. Mrs. Wolfe then threw a brick through the rear window of the Pittman automobile and directed some additional obscenities toward him. Whereupon Pittman jumped from his automobile and chased Mrs. Wolfe into the building with the knife in his hand, saying, "I'm going to kill you."
Johnston had tried to stop Pittman from entering his building, and when this effort failed, he went to his automobile, parked nearby, and secured a loaded .45 ...