(Dissenting):
This case was heard and decided by three Judges of the Common Pleas Court. The defendant was indicted and charged with the crime of murder in the first degree. Upon trial, the defendant interposed the defense of self-defense.
The issues were clear-cut. The State claimed that the defendánt was guilty as charged. The defendant admits the killing and claimed that he did so in the exercise of his right of self-defense. In my opinion there is no middle ground upon the proof presented to the trial court. The defendant is either guilty of murder in the first degree, or he is not guilty by reason of his affirmative defense.
The credibility of the witnesses is to be determined by the trial court. With such determination, except in rare instances, we have nothing to do. There is wisdom in this rule. The trial judges saw the witnesses, heard them testify, observed their demeanor, and doubtless considered all other elements that by law may be considered in determining their credibility and were in an immensely better position to arrive at a conclusion as to the truth of the entire situation and the true situation as established by all the proof.
The defendant undertook to sustain his affirmative defense of self-defense by his testimony alone. He told a story in support thereof that is rebutted by almost every material circumstance developed otherwise in the proof. The trial judges by their verdict reached the conclusion that the defendant had wholly failed in his efforts to establish his defense. The story told by him is so improbable and incredulous that it cannot be believed by any disinterested individual. That an acquaintance for years would park his car in front of his store, alight and enter unarmed and undisguised, to rob in the manner described by the defendant is as ridiculous as is a claim that a sieve will hold water. With; the conclusion of the trial court on’ this issue I am in complete accord.
This issue having been concluded adverse to the defendant, we ate remitted to an examination of the proof offered in support of the charge in the indictment.
The defendant admitted the killing. Having failed to sustain his defense, the killing was purposely and unlawfully done. Under the proof it was purposely and maliciously done. He told the officer a few minutes after he did the shooting that he shot the deceased as he was leaving. He shot him maliciously because of the grudge he harbored in his mind for several years engendered by his own valuation placed on the relations said to have existed between his wife and deceased. This is second degree murder. 812403 GO.
Was there evidence of premeditation and deliberation? The Federal Agent working in the United States Internal Revenue Service testified in the case that he had a conversation with the defendant m January, 1938. This interview was probably occasioned by the activity of the defendant in some unlawful liquor traffic. The defendant threatened Smeraldi at that time that when the deceased came out of prison he would take care of him and get even with him. The defendant evidenced a grudge at that time by reason of some allegedly illicit relationship between the defendant’s wife and Smeraldi during the time the defendant was incarcerated. The record shows that this unfriendly feeling had existed for some time and it continued up to the time of the killing. As evi*117dence of its existence at that time the defendant in explaining the happenings at the time of the murder carried this grudge into the first declaration which he said Smeraldi made when he entered his store on the night of November 11, 1939, by claiming that Smeraldi said there were two things he wanted. One was that he wanted the defendant to stop talking about his wife and Smeraldi, and the other was that he wanted money.
The facts and circumstances developed by the proof justify the likely conclusion of the trial court that this was a premeditated deliberate murder, and that the defendant had prepared and planned the situation in detail in that store in readiness for Smeraldi when and if he entered the store and that upon completion of the slaughter the defendant faked the appearance of a robbery to cover up. The record clearly sustains such a conclusion on the part of the trial court and with such conclusion I am in full accord.
The defendant and Smeraldi had been acquainted for years. It is said they were together in unlawful liquor traffic. Both had served time. It appears that when the defendant was in jail, Smeraldi was out and the defendant, whether true or untrue, believed that improper relations took place in his absence between his wife and Smeraldi. That his feelings in this respect engendered malice toward Smeraldi is evident from the proof.
Smeraldi entered the defendant’s store that night unarmed and undisguised. From the only testimony given by the defendant, Smeraldi was in that store about fifteen minutes. The cold engine of his car would indicate that he was there longer. What really took place during all this period will never be known. It is established that when Smeraldi started to leave the store, he was shot down with six or seven bullet holes in his body. The counter was between the two men. The defendant was in no danger with a revolver in his hand without shooting.
In the first interview with Patrolman Lewis, a few minutes after the shooting, the defendant said he grabbed the gun and shot Smeraldi as .he was about to go out.
There appears no genuine lawful reason of any kind for this killing. After the killing, five $5.00 bills were spread around. The decedent was lying prone upon the floor on his face. Under his hand was found the key to his automobile and the shears were inserted in the same hand. Smeraldi, about to commit a robbery and assault the defendant in doing so by and with the scissors picked up in this store, could not likely hold the key to his automobile in the same hand with the shears. The deceased in starting to go out to his automobile evidently in a casual manner lifted the key from his pocket to start his car when outside. After the shooting the stíissors were easily inserted in this hand for appearances.
The maliciousness of this killing is evidenced by the circumstances. The fact that six or seven bullets were fired into this man’s body, some of them from the rear, demonstrating the venom in this act of killing, with other circumstances that might be enumerated, may all be considered in support of the charge that the defendant deliberately, and with premeditation, killed Smeraldi.
Many other circumstances might be enumerated not hereinbefore' enumerated, to the same end, the recitation of which would serve no useful purpose.
The majority of this court have decided to modify the judgment of the trial court by reducing the degree of the crime committed from murder .in the first degree to manslaughter.
I am dissenting from the judgment of the majority of the Court in this case.
One theory upon which such conclusion may be predicated is that the defendant was acting in self-defense,. but used too much force in repelling his assailant. No such defense was interposed by the defendant. There was no claim that the shooting was accidental. There is no claim that it was done in the heat of passion during a sudden quarrel. The only claim is that the defendant acted in self-defense in repelling a robber. *118The trial court held this claim to be unsustained by proof. This claim being based on falsehood and completely failing, tends to support the charge under the circumstances in this case.
The other theory upon which such reduction might be granted is that there is no proof of premeditation and deliberation or purpose and malice. On the issue of premeditation and deliberation there is the testimony of the Federal Agent, plus the circumstances of a vicious, malicious killing of a human being by shooting him first in the back and then pumping many more bullets into his body and then seeking to cover up by faking a robbery scene. This theory of no evidence repudiates the above evidence as incredible. This is weighing the evidence ánd reversing on the weight of the evidence by two Judges of this Court.
In my opinion there is room for only one of two conclusions. There is no middle ground. The defendant is guilty of murder in the first degree or he is not guilty of the commission of any crime charged m the indictment.