Commonwealth v. Flax

Citation200 A. 632
PartiesCOMMONWEALTH v. FLAX.
Decision Date30 June 1938
CourtUnited States State Supreme Court of Pennsylvania
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...

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