122 A. 166 (Pa. 1923), 267, Commonwealth v. Kellyon

• Judge: Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
• Parties: Commonwealth v. Kellyon, Appellant
• Date: 23 June 1923
• Docket Number: 267
• Court: Pennsylvania Supreme Court
• Citation: 122 A. 166,278 Pa. 59

Page 166

122 A. 166 (Pa. 1923)

278 Pa. 59

Commonwealth

v.

Kellyon, Appellant

No. 267

Supreme Court of Pennsylvania

June 23, 1923

Argued: May 7, 1923

Appeal, No. 267, Jan. T., 1923, by defendant, from judgment of O. & T. Luzerne Co., April T., 1922, No. 48, on verdict of guilty of manslaughter, in case of Commonwealth v. Sophia Kellyon. Affirmed.

Indictment for murder and manslaughter. Before JONES, J.

The opinion of the Supreme Court states the facts.

Verdict of guilty of manslaughter on which sentence was passed. Defendant appealed.

Error assigned, among others, was refusal of arrest of judgment.

The assignments of error are overruled and the judgment is affirmed.

S. S. Herring, for appellant, cited: Com. v. Payne, 242 Pa. 394; Com. v. Byers, 45 Pa.Super. 37; Com. v. Morrison, 266 Pa. 223; Com. v. LaGrange, 227 Pa. 368; Com. v. Curcio, 216 Pa. 380; Com. v. Sutton, 205 Pa. 605; Com. v. McManus, 143 Pa. 64.

Edmund E. Jones, Assistant District Attorney, with him Arthur H. James, District Attorney, for appellee, cited: Cathcart v. Com., 37 Pa. 108; McMeen v. Com., 114 Pa. 300; Com. v. Colandro, 231 Pa. 343; Com. v. McCloskey, 273 Pa. 456; Com. v. Gable, 7 S. & R. 423; Com. v. Weinberg, 276 Pa. 255.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

[278 Pa. 60] MR. JUSTICE SCHAFFER:

The question which appellant's counsel raises on this appeal is whether on an indictment charging murder and manslaughter there can be a conviction of the latter crime, where the evidence establishes the offense was murder of the first degree in the perpetration of a robbery.

The Commonwealth claimed and all its evidence went to support the charge that the

Page 167

deceased was killed in the perpetration of the crime of robbery. The indictment contained two counts, one for murder and the other for manslaughter. The court defined the latter felony to the jury and then said to them: "I have defined to you manslaughter because we find the charge in this indictment. But we say to you that there is no evidence in this case of any sudden quarrel or provocation, or any circumstances from which proof of manslaughter would arise. There seems to be no dispute that the shooting which resulted in the death of George Johns was not committed in a sudden heat, but was a wilful, malicious, deliberate, and premeditated killing. And while the court does not withdraw from your consideration the count [278 Pa. 61] of manslaughter, we say to you that, under all the testimony as disclosed upon the trial of this case, the perpetrator or perpetrators of this terrible deed is or are guilty of murder upon the first count in this indictment, and it is for you to say, under all the evidence in this case, whether the defendant aided, abetted, or participated in inflicting those wounds upon George Johns, or procured or persuaded others to perpetrate the deed, and, if she did, you must determine whether her act was criminal and what its grade or degree is." Notwithstanding this instruction from the trial judge, the jury found the defendant guilty of manslaughter.

The defendant had accompanied the deceased on an automobile ride. The theory of the prosecution is that it had been planned between her and confederates who followed the motor in which she and deceased rode, that he should be robbed. There was evidence that he had been. He was shot to death but his body also showed abrasions, lacerations and scratches. In addition to this, there were pieces of silk tassel corresponding to the trimming of the defendant's dress found in the vicinity of the murder and near the body of the deceased. Commenting on these circumstances in connection with the jury's action, the learned trial judge in his opinion...