Commonwealth v. Karmendi

• Decision Date: 12 November 1937
• Docket Number: 220
• Citation: 195 A. 62,328 Pa. 321
• Parties: Commonwealth v. Karmendi, Appellant
• Court: Pennsylvania Supreme Court

195 A. 62

328 Pa. 321

Commonwealth v. Karmendi, Appellant

No. 220

Supreme Court of Pennsylvania

November 12, 1937

May 17 1937, Argued; reargued October 1, 1937

Appeal, No. 220, Jan. T., 1937, from sentence of O. & T Blair Co., June Sessions, 1936, No. 7, in case of Commonwealth v. Margaret Karmendi. Judgment reversed; a venire facias de novo awarded; and order for change of venue is forthwith filed.

Indictment for murder. Before PATTERSON, J.

The opinion of the Supreme Court states the facts.

Verdict of guilty, with penalty of death and judgment and sentence thereon. Defendant appealed.

Error assigned, among others, was refusal of application for change of venue.

Judgment reversed; a venire facias de novo awarded; an order for change of venue is forthwith filed.

Frank J. Reiser, Sr., with him Frank B. Warfel, for appellant.

Robert J. Puderbaugh, Assistant District Attorney, with him Chester B. Wray, District Attorney, for appellee.

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

OPINION

MR. CHIEF JUSTICE KEPHART:

Margaret Karmendi was found guilty of the murder of her three-and-a-half-year-old boy and sentenced to death. She had been indicted with Roy Lockard for the same offense but was separately tried. This was her second trial. Her first conviction was reversed in 325 Pa. 63, and a new trial granted. Her companion, Roy Lockard, found guilty of the same offense, with the same punishment, had also appealed. The judgment was sustained in Com. v. Lockard, 325 Pa. 56. Mrs. Karmendi appeals from her second conviction. We are now reviewing the facts for the third time.

The chief ground of complaint is that there was not sufficient evidence to warrant conviction. In reviewing the record of a conviction for murder under the Act of February 15, 1870, P.L. 15, as it is our duty so to do, we are to determine solely whether the degree or elements of murder in the various degrees are present. In this grave accusation we review only the Commonwealth's case. We do not approach the question as if we were jurors deliberating on the weight of the evidence or the credibility of the witnesses, nor as jurors would do under the facts as developed. Nor do we approach it with a fear that we might possibly find the elements of first degree murder to be in the record, and hesitate in our duties because it involves the death penalty. Nor do we consider it with a desire to avoid the unpleasant duty of finding the elements present. Our simple question, one that has been passed on by this court often before, is this: Are the elements of first degree murder present? In other words, was there sufficient evidence, direct or circumstantial, from which the jury might find beyond a reasonable doubt a homicide of the first degree, committed by the accused? In so doing, we do not consider evidence of the prisoner which, if believed, might show innocence: Com. v. Danz, 211 Pa. 507.

In convictions for murder, the sole, absolute and final responsibility for the verdict and its consequences rests with the jury. That responsibility comes from the performance of a public duty of the highest importance and is assumed when all the testimony, pro and con, is weighed and considered by them and a decision reached. Their conclusion cannot be reversed or set aside by this Court unless there has been a trial mistake, or the evidence is insufficient to sustain the verdict as a matter of law.

With this thought in mind we must review the evidence, first stating the State's position in the trial. The Commonwealth's theory of the case is that there was a plot to get rid of the child by Lockard and the accused. The child was in their way. There was time for premeditation, preparation, deliberation and action. To cover up their offense it was to be so arranged that death was to take place on a highway when an automobile was passing, and to be inflicted in such a way that the unknown motorist should be charged with striking and killing the boy. To sustain this theory, the Commonwealth rests its case for conviction on these grounds: (1) That the accused must have committed the crime as she was the only person logically in a position to commit it; (2) that her statements and admissions show that even if Lockard committed the killing she participated in the crime; (3) that when she was accused of the crime by Lockard, she so demeaned herself as to admit it. Ancillary to these three basic grounds, the Commonwealth submitted evidence of the unnatural conduct of the accused at the time of the killing and which persisted afterward even to the time of trial.

We will now state briefly the salient points of the evidence, which are not disputed. Margaret Karmendi, a married woman, her husband working in a silk mill, met Roy Lockard sometime before April 21, 1936, possibly eight months or so before the crime. There were many disagreements between the accused and her husband and they had been separated. No illicit relations between the accused and Lockard were shown, but it did appear that their friendship was unknown to the husband, and on the days when they met she returned to her home before her husband came back from work. On at least one occasion the child had told his father that on his walk to the town with his mother she had had a conversation with a man. An acquaintance grew up between them, and about 5:15 on the afternoon of April 21st they met. The little boy was with them. They walked to the Lockard home on the outskirts of the City of Altoona to get his coat, after which they went down toward the center of town, reaching 11th Avenue and Bridge Streets about 7:30; from there they proceeded to the Pennsylvania Railroad Station, where they remained until about 9:00 o'clock in the evening. Leaving it, they went up 10th Avenue, crossed Bridge Street to 17th Street, thence to Jaggard Street. Lockard was carrying the boy. A short distance down Jaggard Street they waited for about five minutes. An automobile came down Jaggard Street from First Avenue, and, as the automobile passed, the top of the boy's skull was crushed in by a heavy railroad spike. We follow the steps of the actors, after the crime, from the testimony of several witnesses.

Lockard picked the child up and went over to the house of a neighbor, Paul Iorio, a short distance away. There, in response to a scream from defendant, Iorio opened the door. The accused and Lockard were before him. Lockard said in appellant's presence "Let me get in. The baby got hurt by an automobile." The automobile was described by Lockard as a Ford or a Chevrolet, '33 or '34, black coupe. It was variously described thereafter by both of them. Appellant also attributed the baby's wounds to an automobile accident. Other incidents took place in that house which will be later described. The child remained at Iorio's a short time. It was still living and was taken by Lockard in a truck to the Mercy Hospital. It died in a few hours. Appellant did not go with it to the hospital. She remained at the Iorio home.

When officer Wininger and police reporter Wertzberger went back with Lockard to the Iorio home from the hospital to see the accused, both she and Lockard insisted the child was killed by an automobile. She described carefully how the accident happened. She said that she and Lockard were walking with the boy on Jaggard Street, on the west side of the Avenue. Lockard was carrying the child; his head was resting on Lockard's shoulder, with his arms around Lockard's neck. The car came up, swerved and struck the boy's head as it rested on Lockard's shoulder. Neither Lockard nor the accused were injured because they were standing together and were away from the car. She and Lockard pointed out the exact place where the "accident" occurred, and described when and how it happened. The accused, after leaving the Iorio home, when Lockard was away from her, told the same story in the place where she telephoned to a doctor, and also where she called the hospital. When she notified her husband, she told him the same thing. She repeated this the next day at her mother-in-law's house to persons there. She seemed in rather a pleasant mood when Officer Flynn called to see her that day, and repeated the same tale about the automobile to him, saying that she had noticed the car again after the accident, and that a black cloth had been placed over the license plate so that it could not be known. Later that day, about 9:30 in the evening, when Flynn returned he said: "I know who killed your boy, Margaret." "You do?" she exclaimed. "Did you get the fellow? Was there two in the car?" He replied "I don't know who they were." There is no disagreement that the foregoing recital of facts actually took place. Lockard, when away from the accused, made similar statements, until the next day, that is the 22nd, when he made the first statement accusing this woman of the crime.

It is admitted the child was murdered in the manner first described. The automobile theory was amply disproved by the evidence, and was subsequently abandoned by the accused. For it she substituted a statement that Lockard actually brained the child with a spike, without her connivance or consent and that after Lockard struck the boy he told her to say it was an automobile that hit him, threatening that if she did not tell that story she would receive the same treatment. But from the time of the striking of the blows, until they reached Irorio's home, did they have time to work up the details as to how, when and where, an automobile sideswiped the child, with a full account of the accident? The accused was separated from Lockard shortly after they went into Iorio's home. After his return from the hospital she was there but a short time before he...