374 Pa. 43 | Pa. | 1953
Opinion by
The facts presented by relator on this appeal would seem reasonably to justify his claim that he is entitled to some relief, but he has mistaken his remedy.
At about 2:00 A.M. on March 4, 1926, relator and a companion, one McQueen, were walking north on Tenth Street above Lombard Street, in Philadelphia. They were accosted by two policemen. Relator and McQueen drew their revolvers, and shots were exchanged by relator and the two officers but not by McQueen. McQueen was killed by a bullet from the revolver of one of the parties. Relator and the officers all had .38 caliber weapons. The fatal bullet was a .38 caliber full metal patch bullet, that is, one having a metal alloy jacket casing over the lead bullet core. At relator’s trial he testified that his cartridges were soft lead bullets, and that cartridges of the type extracted from
Twenty-one years later, in 1947, relator applied to the Board of Pardons for commutation of his sentence. His petition was based on the alleged impossibility of his having fired the fatal shot because, as he claimed, the bullet that killed McQueen was a special metal jacketed one, 1-9/16" in overall length, and therefore could not have been used in or fired from his revolver which could not chamber a cartridge more than 1-3/16" overall. The Board of Pardons instructed an Assistant District Attorney to investigate this contention and the question was referred by the District Attorney’s office to a ballistic expert of the Philadelphia Police Department. There had not been any such expert in the department prior to 1930. The ballistic expert apparently
It should be immediately obvious that a writ of habeas corpus is not an appropriate remedy whereby to furnish to the relator any relief to which he may be entitled under the facts and circumstances above set forth. Such a writ is not, as this court has frequently pointed out, a substitute for a motion for a new trial or for an appeal or for a writ of error: Commonwealth ex rel. Marelia v. Burke, 366 Pa. 124, 126, 75 A. 2d 593, 594, and numerous cases there cited, to which may be added Commonwealth ex rel. Carey v. Montgomery County Prison Keeper, 370 Pa. 604, 606, 88 A. 2d 904; 905; Commonwealth ex rel. Geiger v. Burke, 371 Pa. 230, 89 A. 2d 495. As the.court below properly said: “It is clear that relator was convicted and sentenced under due process of law. The court had jurisdiction, and relator was represented by competent counsel, and had a fair and impartial trial before an able and just judge. Consequently, the imprisonment under which he is held is lawful, and he is not entitled to be discharged or released from prison by means of a writ of habeas corpus.” The fundamental issue in relator’s trial was whether or not it was a bullet from his
What we really have here is what may fairly be regarded as after-discovered evidence of vital import; it was not, and could not have been, produced at relator’s trial. Under such circumstances he can pursue one of two remedies. He may institute proceedings under the Act of April 22, 1903, P. L. 245, which provides that the Supreme Court may, in such a case as this, authorize the court of oyer and terminer to grant a rule for new trial nunc pro tunc; if that court shall not deem the grounds sufficient it shall refuse a new trial and the proceedings shall terminate; if, on the other hand, it be of opinion that, of right and justice, a new trial should be granted, and if the Supreme Court on appeal concurs with that opinion, a new trial shall be had as if it had been granted in due course following the conviction.
The order of the court below dismissing relator’s petition for a writ of habeas corpus is affirmed.
Since the passage of the Act of 1903 there is no justification for invoking the writ of error coram nobis in any case in which a defendant has been convicted of murder in the first degree: Commonwealth v. Harris, 351 Pa. 325, 342, footnote 7, 41 A. 2d 688, 697; Commonwealth v. Mathews, 356 Pa. 100, 102, 51 A. 2d 609, 610.