Commonwealth v. Almeida

68 A.2d 595 (1949)

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Nature of the Case

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Facts

D, Edward Hough, and James Smith imbibed freely of liquor at a Philadelphia taproom, and in another taproom, Smith gave a.45 automatic type revolver to Hough and 'a large pistol' to D. Hough had a smaller pistol. They went to a garage, pointed their pistols at the attendant, stole a blue car, and motored to the Acme Market. D and Hough entered the market with drawn guns. Hough emptied a cash register, sayin: 'This is a hold-up.' He also took $3 from the cashier's wallet. He then robbed another cash register. D, with gun in hand, approached the store manager. The latter yelled, 'Hold-up,' and grabbed two cans of corn, whereupon D cursed him and said: 'I'll get you' and started firing. The manager was not hit. The total amount stolen was $262. D also grabbed some bills from a one-armed customer. They left the Market and went to the blue car, which Smith was backing away from the curb. Patrolman Ingling was off duty at the time and when the bandits were backing their car Ingling returned to his car in which his wife, his son Leon and his daughter Jean, age 16 and 15 respectively, were sitting. The cries of 'hold-up' brought three policemen and two police cars to the scene. Officer Waters and Officer Fox, in one of the police cars, came almost abreast of the blue car when Hough fired a bullet in their direction at a distance of about 30 feet. Policeman Waters then fired a shot at him. As Hough attempted to get into the blue car Ingling grabbed Hough by the back of the neck and Smith then deliberately fired three consecutive shots at Ingling, and that the first shot hit him. Her children also testified that it was Smith who fired the fatal shot. Hough was apprehended. Smith and D were arrested several months later for participating in a bank hold-up in New Orleans Hough pleaded guilty to the murder of Ingling and was sentenced to death. Smith was tried, convicted of first-degree murder and sentenced to life imprisonment. As for D certain facts 'raise the very strong inference that the fatal shot was fired mistakenly by a policeman.' D did not take the stand. D was convicted and appealed. P contends that the jury was justified in finding that the bullet which killed Ingling was fired by one of the three confederates and further that it is immaterial whether the bullet was fired by one of them or whether it was fired by one of the policemen in repelling the assault of the bandits and in attempting to frustrate their escape.