Commonwealth v. Flax

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtMAXEY, Justice.
Citation200 A. 632
PartiesCOMMONWEALTH v. FLAX.
Decision Date30 June 1938
200 A. 632

COMMONWEALTH
v.
FLAX.

Supreme Court of Pennsylvania.

June 30, 1938.


200 A. 633

Appeal No. 222, January term, 1938, from the sentence of the Court of Oyer and Terminer of Philadelphia County, No. 991, August Sessions, 1937; James Gay Gordon, Presiding Judge.

Abraham Flax was convicted of second-degree murder, and he appeals.

Reversed, and venire facias de novo awarded.

Argued before KEPHART, C. J., and SCHAFFER, MAXEY, DREW, LINN, STERN, and BARNES, JJ.

Daniel Greenfield, Thomas D. McBride, and Lemuel B. Schofield, all of Philadelphia, for appellant. Harry Felix, Asst. Dist. Atty., and Charles F. Kelley, Dist. Atty., both of Philadelphia, for appellee.

MAXEY, Justice.

&gt

This is an appeal by defendant, Abraham Flax, from the judgment and sentence of the Court of Oyer and Terminer of the County of Philadelphia, entered upon a verdict of murder in the second degree. The Commonwealth alleges that on the night of July 8, 1937, Abraham Flax fatally shot his brother, Morris Flax, in the abdomen, the victim dying three days later. Defendant was charged in two bills of indictment, one with murder, and the other with voluntary and involuntary manslaughter.

The brothers conducted a provision business in a store located at 616 South 18th Street, Philadelphia. They lived with their respective families in apartments on the second and third floors of the building.

Ida G. Flax, the deceased's wife, and the only eyewitness who testified for the Commonwealth, stated in substance that on the night in question defendant entered the store and passed through to the stock room in the rear, where he remained for five minutes, that he then "came out and stood by the candy counter" for another five minutes, that he then departed with his father in an automobile, that upon returning shortly thereafter, he remained in the car for sometime and then re-entered the store. She further testified that defendant approached her husband and herself as they stood behind the cake counter and said to her husband: "How much trouble do you want out of me?" and then shot him and threw him on the floor, and while he had him on the floor, he fired two more shots wildly. She

200 A. 634

added: "My husband finally got the gun away from him, chased him out, and he [defendant] ran out and got in the machine." She also testified that while the brothers were struggling, she went to phone for help, that she heard her husband fire one shot outside but did not see him do it, and that her husband went to the hospital. At the hospital, according to her testimony, the defendant said: "'There she is, I am sorry I didn't shoot her,'" and her husband "hollered 'enough' and said that he [defendant] was the man shot him." On cross-examination she admitted that her husband had his hand on the gun during the struggle on the floor during which the two shots were fired. For the purpose of impeaching her testimony, she was questioned on cross-examination as to a civil suit involving the proceeds of a life insurance policy containing a double indemnity clause for accidental death. She admitted that she was plaintiff in that case but denied knowledge of the fact that the suit involved the sum of $1,000 and that to succeed in that suit she would have to prove that her husband had not provoked an assault which resulted in his death.

Several police officers testified on behalf of the Commonwealth. A motorcycle policeman testified that he had approached to within twenty feet of the store when he heard three shots and saw defendant run from the store and enter an automobile, that the defendant refused to stop at his command, that he pursued and apprehended him. The witness said: "I asked him what he did and he told me he just shot a man in the store." He said that he took defendant to the hospital where the wounded man identified defendant as his brother and asserted that defendant had shot him, that the defendant made no comment as to this, and that "he said he would not talk until he got a lawyer." The witness also testified that when defendant saw the deceased's wife, he hollered: "There she is; I should have shot her." A police officer testified that he arrived at the hospital "a minute after Morris", that he found the revolver on the ground where Morris had dropped it, containing four empty shells and one loaded shell. On cross-examination he said that the bullet which had not been fired had "indications of being struck by the firing pin". Another police officer testified that he asked defendant in the hospital "whether he had done any shooting" and he replied: "'Yes, I shot my brother, Morris Flax.' I asked him, 'Why did you shoot your brother?' He said, 'Oh, domestic difficulty.'" The witness testified further that Morris Flax, upon being questioned in the presence of defendant, identified the latter as his brother and stated:. "He shot me. He threatened to shoot me for quite some time." A doctor who attended Morris Flax at the hospital testified that he died three days after admittance from "toxemia, superinduced by infection from the gunshot wound."

Defendant, aged 42, testified that on the night of the shooting he returned to the store about 10 P.M. after he and his father had made some deliveries, that he and his father went into the store, that his brother Morris rang up the sales in the cash register, that he then said to his brother: "'What about the money you owe the store, $145?" My brother said, 'What the hell is the matter with you,' and 'do you want to make anything out of it; are you mad?' So I tried to forget it." He said that his father was in the store at the time. He then left the store without replying to his brother. He talked to his father outside in front of the store for some time. He re-entered the store to go upstairs to find his wife. He said: "I came in the middle of the store. My brother came out and said: 'I have been going after you for a long time. I will fix you now, damn you.' "He testified that his brother was a larger man than he was, that he (the defendant) went to the stock room and got the revolver from the safe. He said: "We had the revolver over thirty years. I was coming out toward the front of the store, just with the intention of scaring my brother. I had the revolver in my hand, and had it pointing down toward the floor." He testified that his brother then struck him and said to him: "'Damn you, I will get you,' and 'I have been going after you a long time.' "The witness said that "when he fell down with that punch he had given me, I said, 'I don't want the gun to go off. We can get out of this; I will forgive you.' He says, 'I will fix you right' He grabbed the gun with his two hands. I was scared and worried then. He had his two hands on the gun. I was half-way on the floor. Then he grabbed—I had my hands on it; there were four hands on the gun, and we were both struggling with the gun." After testifying how they were struggling with both their hands on. the gun, he said: "There was one shot and another shot fired. I didn't know that anyone had been hit, because I didn't know what was

200 A. 635

happening; we were going around, naturally, while struggling, and we were laying on the floor, face to face, with the four hands on the gun; side by side. When I felt that my brother Morris had got the gun, I was scared then. I jumped up and ran out the door. * * * My brother jumped up and followed me out and he fired at me going out the door and he fired again, and I tried to get away from my brother. * * I went around in front of my car to get away from him, I went around the back. As I came to the driver's seat, the door was closed. * * * I shut the door and sat down to get away from my brother, and he had the gun—the glass in the door was down—he pointed the revolver at my head, and I felt like I am going now. * * * He kept on pulling the trigger and saying, 'I'll fix you,' but it didn't go off." Defendant said that he then started the car and drove up 18th Street. He testified that he was apprehended a few blocks farther on by a motorcycle officer, that the first time he knew that anything had happened to his brother was when someone had said that his brother "ran to the hospital", and that he drove to the hospital with the motorcycle officer. He said that when one of the police officers asked his brother: "Is this the man [meaning defendant]?" his brother replied, "Yes, that is him." He testified further that when his sister-in-law came in later all that he said to her was "There is the cat responsible for our trouble." On cross-examination he testified that his sister-in-law was present when her husband hit him but not when the shooting occurred.

Louis Flax, father...

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96 practice notes
  • Com. v. Thomas
    • United States
    • United States State Supreme Court of Pennsylvania
    • November 9, 1978
    ...was something different. E. g., Commonwealth v. Cooney, 431 Pa. 153, 157, 244 A.2d 651 (1968); Commonwealth v. Flax, 331 Pa. 145, 152-54, 200 A. 632 (1938); Commonwealth v. Colandro, 231 Pa. 343, 350, 80 A. 571 (1911). A reconciliation of the jury's prerogatives and the necessity that the v......
  • Com. v. McGrogan
    • United States
    • United States State Supreme Court of Pennsylvania
    • November 30, 1972
    ...429 Pa. 534, 241 A.2d 97 (1968); Commonwealth v. Pavillard, 421 Pa. 571, 220 A.2d 807 (1966); Commonwealth v. Flax, 331 Pa. 145, 200 A. 632 (1938); Commonwealth v. Yeager, 329 Pa. 81, 196 A. 827 (1938); Commonwealth v. Carroll, 326 Pa. 135, 191 A. 610 (1937); Commonwealth v. Miller, 313 Pa.......
  • U.S. ex rel. Matthews v. Johnson, No. 73-1424
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 15, 1974
    ...court's action did not constitute error. Commonwealth v. LaRue, 381 Pa. 113, 112 A.2d 362 (1955); and Commonwealth v. Flax, 331 Pa. 145, 200 A. 632 285 A.2d at 514. 9 Page 343 III. Thus, to offset Justice Pomeroy's constitutional contentions we must turn to the argument presented by the Com......
  • Green v. United States, No. 46
    • United States
    • United States Supreme Court
    • December 16, 1957
    ...373, 382, 142 P.2d 680. Pennsylvania.—Commonwealth v. Deitrick, 221 Pa. 7, 17—18, 70 A. 275; Commonwealth v. Flax, 331 Pa. 145, 157—158, 200 A. 632. Tennessee.—See Slaughter v. State, 25 Tenn. 410, 413—415; Reagan v. State, 155 Tenn. 397, 400—402, 293 S.W. 755. Texas.—Jones v. State, 13 Tex......
  • Request a trial to view additional results
96 cases
  • Com. v. Thomas
    • United States
    • United States State Supreme Court of Pennsylvania
    • November 9, 1978
    ...was something different. E. g., Commonwealth v. Cooney, 431 Pa. 153, 157, 244 A.2d 651 (1968); Commonwealth v. Flax, 331 Pa. 145, 152-54, 200 A. 632 (1938); Commonwealth v. Colandro, 231 Pa. 343, 350, 80 A. 571 (1911). A reconciliation of the jury's prerogatives and the necessity that the v......
  • Com. v. McGrogan
    • United States
    • United States State Supreme Court of Pennsylvania
    • November 30, 1972
    ...429 Pa. 534, 241 A.2d 97 (1968); Commonwealth v. Pavillard, 421 Pa. 571, 220 A.2d 807 (1966); Commonwealth v. Flax, 331 Pa. 145, 200 A. 632 (1938); Commonwealth v. Yeager, 329 Pa. 81, 196 A. 827 (1938); Commonwealth v. Carroll, 326 Pa. 135, 191 A. 610 (1937); Commonwealth v. Miller, 313 Pa.......
  • U.S. ex rel. Matthews v. Johnson, No. 73-1424
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 15, 1974
    ...court's action did not constitute error. Commonwealth v. LaRue, 381 Pa. 113, 112 A.2d 362 (1955); and Commonwealth v. Flax, 331 Pa. 145, 200 A. 632 285 A.2d at 514. 9 Page 343 III. Thus, to offset Justice Pomeroy's constitutional contentions we must turn to the argument presented by the Com......
  • Green v. United States, No. 46
    • United States
    • United States Supreme Court
    • December 16, 1957
    ...373, 382, 142 P.2d 680. Pennsylvania.—Commonwealth v. Deitrick, 221 Pa. 7, 17—18, 70 A. 275; Commonwealth v. Flax, 331 Pa. 145, 157—158, 200 A. 632. Tennessee.—See Slaughter v. State, 25 Tenn. 410, 413—415; Reagan v. State, 155 Tenn. 397, 400—402, 293 S.W. 755. Texas.—Jones v. State, 13 Tex......
  • Request a trial to view additional results

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