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COMMONWEALTH v. KOCH (03/20/72)

decided: March 20, 1972.

COMMONWEALTH
v.
KOCH, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Northampton County, Sept. T., 1968, No. 205, in case of Commonwealth of Pennsylvania v. Morris Wetherhill Koch.

COUNSEL

James C. Hogan, with him Donald A. Corriere, and Hogan and Scott, for appellant.

Charles H. Spaziani, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 446 Pa. Page 471]

Appellant Morris Koch was charged in 1969 with the murder of his wife Josephine, assault with intent to murder one John Erkinger, and wantonly pointing a firearm. After a jury trial, appellant was convicted of second degree murder and the other two charges. Post-trial motions were filed and denied*fn1 and appellant

[ 446 Pa. Page 472]

    was then sentenced to eleven to twenty-four years imprisonment. This appeal followed. Appellant raises numerous contentions, none of which merit relief. Consequently, we affirm the judgment of sentence.

Appellant contends the trial court improperly denied his motion to quash the murder indictment. The indictment charged that appellant "did feloniously, wilfully, and of malice aforethought, kill another person. . . ." It is maintained that the indictment was constitutionally defective, failing to give appellant notice that he was charged with first degree murder. Appellant's contention rests on the omission from the indictment of any words indicating a specific intent to kill, an element of first degree murder.

The indictment was properly drawn in conformity with the Act of March 31, 1860, P. L. 427, § 20, 19 P.S. § 351, which provides: ". . . it shall be sufficient, in every indictment for murder, to charge that the defendant did feloniously, willfully, and of his malice aforethought, kill and murder the deceased. . . ." (Emphasis added.) See Commonwealth ex rel. Stevens v. Myers, 398 Pa. 23, 156 A.2d 527 (1959), cert. denied, 363 U.S. 816, 80 S. Ct. 1254 (1960). Appellant maintains that the Act of 1860 is "inconsistent" with Rule 213(b) (5) of the Pennsylvania Rules of Criminal Procedure and has been "impliedly" suspended from operation.*fn2 Rule 213(b) (5) requires an indictment to

[ 446 Pa. Page 473]

    contain a "plain and concise statement of the essential elements of the offense substantially the same as or cognate to the offense alleged in the complaint. . . ."

We find no "inconsistency" between the Act of 1860 and Rule 213(b) (5) and reject appellant's contention. An indictment charging murder generally is adequate notice that the defendant may be tried and convicted of first degree murder and fully satisfies the purposes of Rule 213 to insure adequate notice of the charges. See Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 340, 223 ...


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