Commonwealth v. Bruno

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: DREW, Justice
• Citation: 175 A. 518,316 Pa. 394
• Decision Date: 26 November 1934
• Parties: COMMONWEALTH v. BRUNO.

175 A. 518
316 Pa. 394

COMMONWEALTH
v.
BRUNO.

Supreme Court of Pennsylvania.

Nov. 26, 1934.

175 A. 519

Appeal No. 252, January term, 1934, from judgment and sentence of Court of Oyer and Terminer, Lackawanna County; Will Leach, Judge.

Frank Bruno was convicted of murder of the first degree, and he appeals.

Affirmed.

Argued before FRAZER, C. J., and SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW, and LINN, JJ.

James W. Scanlon and Joseph T. McDonald, both of Scranton, for appellant.

M. J. Eagen, of Scranton, for appellee.

DREW, Justice.

The defendant, Frank Bruno, was convicted of murder of the first degree and the penalty fixed at death. From the judgment and sentence entered against him, he took this appeal.

In the early morning of March 2, 1932, a double house of the ordinary type, owned by Rocco Riccardo, at 245 Mill street, borough of Dunmore, Lackawanna county, burst into flames. One-half of this house was occupied by Riccardo, the other half by Elmer Myers and his wife and family, under a lease from Riccardo. During the course of the fire, which substantially consumed the building, Marion Myers or Wells, eleven years of age, a daughter of Mrs. Myers by another marriage, was burned to death. Bruno and Riccardo were jointly indicted for murder, and later a severance was granted to Riccardo.

At the trial, various witnesses testified to facts showing a conspiracy to burn this building for the purpose of collecting insurance; it appeared that Riccardo had promised Bruno the job of burning the building, and also that Bruno had previously, for pay, set another fire for Riccardo for the same purpose; that Riccardo had let it be known, shortly before the fire, that he was going to Pittsburgh, and that he did not return to the Mill street neighborhood until two days after the fire; that a few hours before the fire was started, Bruno was seen about the premises with a five-gallon can, that an odor of gasoline was then observed by persons on the Myers side of the house, and that his car was parked nearby; and that, when Bruno was seen a few days later, his face appeared to be burned and his hair singed. It was also testified that at a meeting of Bruno, Riccardo, and others, some time after the fire, preparations for Bruno's defense to another charge of arson were discussed, and Bruno then said, with reference to the Mill street fire, "If there is any funny business going on, if I burn you will all burn." There was evidence that insurance policies were assigned by Riccardo for the purpose of furnishing financial assistance to Bruno in the present case. It further appeared from Bruno's own testimony that he had previously been three times convicted on charges of arson, with regard to two of which he admitted ho was guilty and had offered perjured alibis. On his own admission he was a professional incendiary.

In this case, as in the other arson cases in which he was convicted, his defense was an alibi. He said that he took no part in setting fire to this dwelling and that on the evening of the fire he hired a U-Drive-It car in Scranton and drove to Carbondale to deliver whisky which had been ordered by telephone message from the Dew Drop Inn, and that he did not get back to Dunmore until after the fire. Records of the U-Drive-It company and testimony of two of its employees corroborated Bruno's statement that he had hired a car that night. For the commonwealth, the owner and the tenant of the Dew Drop Inn testified in rebuttal that they neither saw nor talked to Bruno that evening, and that there had been no telephone service at the inn on March 1 or for some time prior thereto. Other testimony, offered for the defense, was to the effect that Bruno did not appear to have been burned when he was seen on the morning after the fire, and that burns for which he was treated on June 18, 1932, were of fresh origin.

In this case we are concerned with three statutory provisions: Section 74 of the Act of March 31, 1860, P. L. 382, as amended by P. L. 1923, p. 306, § 1 (18 PS § 2221),¹ which provides that "all murder which shall be * * * committed in the perpetration of, or attempting to perpetrate any arson, * * * shall be deemed murder in the first degree"; section 137 of the Act of 1860, supra, which defined arson as follows: "If any person shall maliciously and voluntarily bum or cause to be burned * * * any * * * dwelling house of another, * * * the person so offending shall be adjudged guilty of felonious arson"; and section 1 of the Act of April 25, 1929, P. L. 767 (18 PS § 3021), which extended the felony of arson to include the malicious burning of one's own dwelling house, in the following words: "Any person who wilfully and maliciously sets fire to, or burns, * * *

175 A. 520

any dwelling house, * * * whether the property of himself or of another, shall be guilty of the felony of arson."

Defendant first contends that under the indictment he cannot be convicted of murder of the first degree. His argument is this: The indictment, since its language follows that of the Act of 1929, alleges a death resulting from the perpetration of an arson within the meaning of that act; arson as defined in the Act of 1929, however, is broader than the arson defined in the Act of 1860; but arson as used in the murder section of the Act of 1860 can mean no more than the offense defined in the arson section of that act; therefore, inasmuch as defendant cannot, under the provisions as to first-degree murder in section 74 of the Act of 1860, be convicted of murder committed in the perpetration of arson as broadened by the Act of 1929, he cannot be convicted of murder of the first degree under this indictment. He further contends that since he was hired by Riccardo, the owner of the house, to set the fire, he can be guilty of no greater crime than his principal, and therefore he would not be guilty of burning the dwelling house of another, and his offense would not constitute arson, within the meaning of the Act of 1860.

To this argument it may be answered that, even...