Appeal from judgment of sentence of Court of Common Pleas of Dauphin County, No. 1535 of 1970, in case of Commonwealth of Pennsylvania v. Harry James Outlen.
Carroll F. Purdy, Jr., for appellant.
Marion E. MacIntyre, Deputy District Attorney, with him LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien.
Appellant was convicted by a jury of murder in the second degree. His post-trial motions for a new trial and in arrest of judgment were denied, and this appeal followed the imposition of sentence of a term of imprisonment of not less than seven nor more than fifteen years.
Viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971), the facts of the homicide are as follows:
Appellant entered a bar in Harrisburg in the company of a female companion. At the time he was armed with a loaded pistol, but there is nothing to indicate that any specific mischief was intended involving the use of that weapon. As he entered the bar, the deceased, Ralph Palmer, spoke to appellant's female companion, whereupon appellant approached the deceased and indicated his displeasure. Appellant did not push or touch the victim at that time, but the victim nevertheless jumped up and shouted "Man, don't touch me any more." Thereafter, the argument between the two men intensified and they started to tussle. In the course of this altercation, the victim struck appellant on the head, above the eye, at least once with a barstool.
Other people present on the scene then separated the two men. The victim backed away from appellant and picked up another barstool. Appellant in turn backed away from the victim and pulled his loaded pistol from his back pocket. The two men faced each other for some ten to fifteen seconds. The two men were some twelve or thirteen feet apart, and the victim was near a door leading to the street, while appellant was about six feet from the same door, around which six or seven people had gathered. As the two men faced each other, some twelve or thirteen feet apart, neither approached the other nor made any move to do so.
Appellant aimed his pistol at the decedent and pulled the trigger, but the gun misfired. Appellant then recocked the pistol and pulled the trigger a second time, but again the gun misfired. Appellant once again cocked the weapon, pulled the trigger for a third time, and this time the gun fired. The bullet entered the decedent's abdomen, inflicting a fatal wound. In the ten to fifteen second interval during which the two men faced each other and appellant attempted three times, the third time successfully, to fire his pistol, neither man made any attempt to approach the other, although the victim was trying to pick up another barstool at the time that appellant pulled the trigger for the third time.
Appellant alleges that the trial court erred in refusing his request for binding instructions to the effect that the jury could not find a verdict of guilty of murder but of manslaughter at the most. Appellant also contends that the court should have granted his request to instruct the jury that if the decedent struck the appellant with a barstool, there was, as a matter of law, adequate legal provocation to ...