Commonwealth v. Mendola
| Decision Date | 26 November 1928 |
| Docket Number | 311 |
| Citation | 294 Pa. 353,144 A. 292 |
| Parties | Commonwealth v. Mendola, Appellant |
| Court | Pennsylvania Supreme Court |
Argued October 1, 1928
Appeal, No. 311, Jan. T., 1928, by defendant, from judgment of O. & T. Luzerne Co., April T., 1928, No. 83, on verdict of guilty of voluntary manslaughter, in case of Commonwealth v Steve Mendola. Affirmed.
Indictment for murder. Before McLEAN, P.J.
The opinion of the Supreme Court states the facts.
Verdict of guilty of voluntary manslaughter, on which sentence was passed. Defendant appealed.
Errors assigned were various rulings and instructions stated in opinion of Supreme Court, quoting record.
The judgment is affirmed and the record is remitted that the sentence may be complied with.
J Harold Flannery, with him John H. Dando and Frank J. Flannery, for appellant. -- It is barely possible for defendant, after proper instructions, to have been guilty of either murder or manslaughter as a principal (though highly improbable since there is no evidence of participation in the act), but he could not have been guilty of any crime as accessory: Com. v. Minnich, 250 Pa. 363; Buck v. Com., 107 Pa. 486.
The court erred in quoting extracts from appellate court decisions asserting conclusions of guilt in fact and in law, as though arising definitely out of the case at bar.
The court erred in its failure to review any of the testimony: Goersen v. Com., 99 Pa. 388; Meyers v. Com., 83 Pa. 131; Com. v. Kaiser, 184 Pa. 493; Com. v. Ronello, 251 Pa. 329; Com. v. Principatti, 260 Pa. 587.
Thomas M. Lewis, District Attorney, with him Herman J. Goldberg, Assistant District Attorney, for appellee. -- The trial judge did not err in refusing to admit the record of conviction of manslaughter of coprincipal in crime: Com. v. Heffelfinger, 82 Pa.Super. 351; Com. v. Prescott, 284 Pa. 255; Com. v. Winter, 289 Pa. 284.
Detached portions of the charge in a murder trial are not ground for reversal, where such remarks, taken in connection with the context, were harmless: Com. v. Meyers, 290 Pa. 573; Com. v. Johnson, 279 Pa. 40; Com. v. Millien, 291 Pa. 292.
The trial judge did not err in quoting statutes and decisions of the court in its charge to the jury: Henry v. Klofer, 147 Pa. 178.
The review of the testimony herein was proper and sufficient: Com. v. Kaiser, 184 Pa. 493; Wally v. Clark, 263 Pa. 322.
Before MOSCHZISKER, C. J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
Steve Mendola, the defendant, tried upon an indictment charging him with murder and voluntary manslaughter, was convicted of the latter and from sentence imposed thereon brings this appeal. The parties here concerned were members of the United Mine Workers of America and, during a coal strike in the winter of 1928, held conferences, inter alia, at the district offices in the Miners Bank Building, at Wilkes-Barre. August Lippi, an officer of the union, resided at Pittston, as did Sam Bonita, Adam Moleski and the defendant, members and officers in Local No. 6 of the union. On the evening of the 15th and the morning of the 16th of February, 1928, the three last named went in search of Lippi to arrange for a conference. Learning of their desire, he left word for them to meet him at the offices in Wilkes-Barre on February 16th, at ten o'clock. This they did, being driven over by Peter Reilly. The defendant, although not a member of the grievance committee, went with the other two who were members. They arrived at the offices and remained a short time in the reception room when Lippi came out and invited them into the conference room, where they found three or four other members of the union, among them Frank Agati, with whom Bonita had previously had harsh words. Bonita, speaking for the committee, asked that a conference be arranged with Mr. Morris, superintendent of the Pennsylvania Coal Company, that a scale of wages might be agreed upon and work resumed. At this juncture, Agati arose from his seat, uttered some angry words and shook his finger at Bonita and, according to defendant's contention, struck him. The Commonwealth denied that any blow was struck, or attempted. In any event, Bonita, with a revolver concealed in his overcoat pocket, shot and killed Agati. He then drew the weapon and fired four additional random shots. The contention that Agati fired one shot after he had received the fatal wound is discredited by the fact that no gun was found in the room where he fell or on his person. The shooting caused a panic and all hurried from the offices, except Agati, who was rushed to a hospital, where he immediately died. Bonita and the defendant fled from the building and the latter, when arrested soon after, had in one overcoat pocket the empty gun with which the shooting was done and in another his own loaded revolver, and also had on his person extra cartridges. There were circumstances supporting the Commonwealth's contention that Bonita and the defendant were acting in concert and entered the offices in question intending to commit unlawful violence therein, and that the latter was a principal in the second degree to the homicide committed by the former. The jury adopted that view so far as to convict the defendant of voluntary manslaughter and he cannot complain because the evidence may have suggested a higher degree of crime.
None of the assignments of error can be sustained. No possible harm resulted from the exclusion of the record showing Bonita's conviction of voluntary manslaughter. Being present at the commission of the crime and charged as a participant therein, the conviction as an accomplice was no excuse for him. In other words, where two join in the commission of a crime, neither can escape because of the conviction of the other. Bonita's conviction might have helped the Commonwealth as an answer to the contention that he shot in self-defense. True, he was not convicted of a malicious killing; neither was the defendant. The killing of Agati, by Bonita, being admitted, the important questions at this trial were as to defendant's participation therein and, if so, the degree of his guilt.
In charging the jury the trial judge read section 44 of the Criminal Procedure Act of March 31, 1860, 1 Purdon's Digest (13th ed.), p. 1043, that: "If any person shall become an accessory before the fact, to any felony, whether the same be a felony at common law, or by virtue of any Act of Assembly now in force or hereafter to be in force, such person may be indicted, tried, convicted and punished in all respects as if he were a principal...
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