*1 J. Mr. Justice of Sahara. As desert sands Owen S. Allwright, 321 U. aptly said in Smith v. Egberts overruling an the instant decision, 669: . . adjudica bring years ago, tends to nine nounced about a restricted class as into the same of this tribunal tions only.” good day train this and this for railroad ticket, more years overruled this Court has In the last few principles long and established than a of rules or score Pennsyl Supreme recently Court reiterated overruled the decisions which vania. Some of years and three the last handed down within had been period say I am of months. To some within deeply created has with this trend which concerned nearly every instability uncertainty field such paraphrase gross To understatement. the law is many others like Egberts' this decision Justice words, bring every present tends to decision made Court into as a rail of this the same class restricted Court good day train ticket marked this road this passenger gets only only until new aboard and then stop. next station Appellant, ex rel. Johnson, Myers. *2 April Submitted Before 28,1960. C. Jones, J., Bell, Bok and Musmanno, Jones, Cohen, JJ. Eagen, Ellsworth Charles in Johnson, appellant, propria persona. F.
John A. Assistant District Hall, and Attorney, Martin H. District for Lock, appellee. Attorney, 1961: Opinion January Justice Mb. Bok, petition filed Ms years old, Belator, forty-seven it denied court below The habeas corpus. writ of and has appealed. before a
He on March tried was been Having murder. Dauphin County given he was of that in the second degree, found guilty victim The years. ten to twenty a sentence of from his to death with her his did paramour, fists. are: for a writ petition
His reasons Ms support protection equal 1. He denied due pre- at the He no counsel had because (a) laws statements where he his alleges liminary hearing *3 complete The indictment not (b) taken, the specific of the crime and it failed to state the scene time. mean- no trial the spirit
2. He had within jury alleged of because guarantees Constitutional ing error in the charge. Court’s the to against He forced himself by
3. testify into statements. evidence his reading Commonwealth’s the 4. was insufficient to support The evidence verdict. jury’s
It be seen at a that all of these reasons glance will hence relate to trial errors and are matters that should raised then or on but have been appeal, they either time. It requires sample raised at author- only corpus to that habeas cannot be used show as a sub- ity for an Commonwealth ex appeal: rel. Kennedy stitute Pa. 535 143 v. 393 A. 2d 660. (1958), Myers, of error allegation The bears comment only the out of two paragraphs arises of the trial The mentions the appellant but judge. only second, both in its quotes opinion. court below fol- the They general “It be stated rule : that all homi- may low homicide the is now, taking human life an- cide— 454 presumed person ma- all homicide to he
other is —that con- degree, until the that murder some licious, is, appears trary in evidence. presump- presumed it is to be
“While murder, degree. higher tion rises no than murder in the second upon toit the to raise The burden is Common-wealth upon degree; de- the murder in the first burden is voluntary manslaughter.” it to fendant to lower Pa. 9 It true that in 58 Commonwealth Drum, judge, sitting (1868), Mr. Justice as trial Agnew, presumed charged jury that “all homicide is appears contrary evidence.” . . . until the in malicious presump doctrine has been so that This modified, only apply all tion is said to not to homicide but now to “felonious homicide”: Commonwealth v. Elliott, (1928) 140 A. Kluska, (1939), Holt, 2d Pa. 65 3 A. Commonwealth v. (1944), A. 2d 372. Pa. 375 therefore The instruction was erroneous. disapprove take use also this occasion We indict- instruction hereafter on an pre- that all for murder felonious homicide is ment degree. in to be murder the second sumed In Commonwealth Samuel Pa. 522 Jones, (1947), Mr. Justice said, we Jones, killings by poison by lying or those wait perpetration attempted per- committed in or in the *4 petration one of the felonies of enumerated in Act the P. L. of PS are felonious. June 24,1939, §4701, killings inherently are felonious and Such malicious qualify, supporting the more if be- facts are without beyond a reasonable as mat- doubt, murder as a lieved ter of law. showing anomalous to a be assert that in
It would by killing presenting poisoning, facts of of felonious felony presumes lying or of the in murder, wait law degree in to constitute murder the facts second such expressly the them murder in when the statute makes judge degree. unlikely any trial would first It is straight away say to such effect but would special the killing murder of these varieties categories degree. Putting therefore, first these aside, premeditated kill- there remain and wilful, deliberate, ings, first as in the can be established murder said, by supra, degree, as we in v. Jones, specific showing kill- facts to and other a intent kill, specific in- ings committed with malice but without according to their circumstances tent to kill, which degree; fit the definition murder in the second would by in- facts and these various conclusions are reached any presumption. ferences, Charges presumption jury to the about the second degree the are often followed the statement man- the defendant lower the offense to burden to slaughter. judge cor- The trial the instant case first in appears rectly contrary evidence”, said “until the dis- to the burden. We but later referred defendant’s approve refers the use hereafter of an instruction that bur- A has to the “burden”. defendant no defendant’s “presumption” may im- den and word whatever, press jury high establishing level the crime at the degree requiring defendant murder of second jury failing present extenuating which the evidence; to would, required re- him. can convict No be anything. quired anybody to convict presumption proper think that use of a We disappeared changed a homicide at murder when we set wording of Drum to that of Elliott, Kluska, required killing. there Holt and felonious Since presump- degree only of murder common one law, separate originally un- of malice needed tion justified. killing from one excusable or that was lawful wording our amendment to the after But Drum, op- required once “felonious” at facts to make it word *5 erate at level and made on presumption any any subject irrelevant misleading.
In
Although
advan-
taken
it cannot be
quoted
above
was erroneous,
of in the current
type
proceeding.
tage
also examined the record with
eye
We have
merit
no
of the
and find
allegations
the other
petition,
no
complains
relator
had
in them. Although
taken from
confessions were
him,
counsel when two
right
that he was advised of his
statements
show
denied. Fur-
and this was not
but refused one,
counsel
competent counsel
represented
thermore,
by
presented
none of the matters
trial and
now
his
ap-
Where no other
of then.
overreaching
complained
due
lack
of counsel
is not
preliminary
lack
pears,
The evidence sustains the verdict sentence. fully The order is affirmed. Benjamin
Mr. Justice R. re- concurs in the Jones sult.
Concueeing by Opinion Me. Justice Bell: I concur in the result but much of the with disagree dicta and the law asserted in the majority opinion, some believe points important raised relator are so by as to a require more specific refutation. appeals from Order of
Johnson, relator, lower Court petition his a dismissing corpus. habeas Relator was tried and Dauphin convicted a by on March County de- 1958, murder in the second and was gree sentenced to a ten term of not less than nor more than twenty years. Costea
Evelyn killed defendant by July 1957. The murder was a brutal one. Relator-defend- ant in his attempted he confessions, only part to repudiate at the admitted that he had struck trial, the deceased with his fists times and that when many she tried run from him he her floor knocked onto the and continued to hit her while she died there. She lay thereafter shortly from a of the hemorrhage brain acute subdural hematoma.
Relator contends that corpus writ of habeas should be granted because he process was denied due and equal protection of the for the rea- law following : sons He had no
(a) counsel at a hearing preliminary his where alleges confessions were taken. However, relator represented from August as well 23, 1957, throughout choice. trial counsel his own Ms provide require de- a a State
Due does interrogated being fendant counsel with while preliminary hearing, police con- and a at a officers or custody upon while in made viction based confession employed which methods were will be sustained unless his trial or of denial of fair amounted Agoston, 364 rights: v. Constitutional Lyons 575; Oklahoma, 188; S. 156, 187, U. 596; S. Stein v. New York, U. Lisenba S. Stroble 343 U. California, S. 344 U. S. Brown v. 314 U. California, Allen, *7 476. 443, petition made that before he admits in his
Relator any he advised that or confessions was statements any a had to statement and that he did not need make freely right con- made the to counsel. Nevertheless, attorney. merit no We find no and asked for fessions in contention. relator’s
(b) was the indictment Relator next contends particulai’ity it failed to state with defective because specific in the crime and the time. The scene of the clearly committed forth that the crime dictment set was Dauphin July County on about this or 15, 1957, in sufficiently so formal de definite. far as Moreover, is plea entry or it is too late after are concerned, fects corpus question proceeding a habeas the va trial to lidity indictment: Commonwealth ex rel. Jenkins of an A. Pa. 19 2d Commonwealth ex 334, 472; 341 v. Ashe, 398 Pa. A. 2d v. Hal 7, 157 167; rel. Haines Banmiller, Petition, 276 Pa. 119 A. 735; Common 1, derman’s Superior Myers, v. 182 Pa. ex rel. Shultz Ct. wealth of March 427, P. L. A. 2d Act 128 431, §431.* 19 PS §11, * any exceptions this to not wlietlier there are decide needWe they inapplicable any
rule, here. Of. would if exist because
459
Eelator
(c)
contends he
denied
due
because of an error in the
murder.
charge
court’s
on
A
can find an
mui'der
jury
accused
in the
sec
guilty
ond
if
degree
death
caused
a
fists:
from
beating
Commonwealth
125.
v.
Pa.
74 A. 2d
Dorazio,
291,
on
question
the
Furthermore,
of reversible error,
Court’s charge
must be
jury
considered,
basis
isolated
in the
excerpts but
a whole and
light
evidence in
it
considered,
and so
case,
is clear
this
prejudicial
was free from
error:
Pa.
reversible
v.
Commonwealth
Clanton,
A. 2d
521,
88; Commonwealth v.
Richardson,
Pa.
828; Commonwealth
528,
Kloiber,
2d 820
; Commonwealth
Donough,
377 Pa.
103 A. 2d
Patskin,
372 Pa.
(d) This was insufficient verdict. support jury’s addition is of merit. contention devoid In completely his admissions relator-defendant’s confessions and there was additional evidence from ample trial, could murder. have found him this guilty "A not a writ of habeas substitute Moreover, corpus for of error or for a motion appeal writ *8 nor is for the correction of trial it available trial; new ex rel. 388 v. errors: Commonwealth Kennedy Mingle, rel. Matthews A. 2d ex 161; Pa. Commonwealth 54, 130 114 A. 2d ex 122; Pa. Commonwealth v. 381 617, Day, 593; Pa. 75 A. 2d rel. v. 366 124, 126, Marelia Burke, insuffi of the sufficiency . . 'the or question . [and] to sustain a conviction cannot of the evidence ciency ” numerous habeas corpus: [citing raised by cases]:’ Pa. rel. Wilson v. 393 ex Banmiller, Commonwealth 421, Mayernick Superior Ashe, v. ex rel. 139 Pa. Ct. Commonwealth Ritchey McHugh, 9Pa. ex rel. v. 18 Commonwealth 12 2dA. 515, Superior 151 2d 659. A. Ct.
460 ex 657. also: 143 A. 2d See Commonwealth Ashmon 391 Pa. 137 A. 2d
rel.
v. Banmiller,
141,
Pa.
66
Ashe,
ex rel. Milewski v.
362
48,
Commonwealth
therein.
A. 2d
and cases cited
281,
been
had
principles
the aforesaid
which
“However,
qualifi
subject
are
this
considered well settled
now
defendant
if the
corpus
cation : Habeas
will be granted
of any
due
deprived
process
for
of
reason
[or
S.
344 U.
other constitutional
: Brown
right]
Allen,
Common
S. 219;
Lisenba
U.
443;*
v. California,
Pa.
ex
Sleighter
rel.
wealth
Banmiller,
Banmiller,
ex rel. Wilson v.
A. 2d 918”: Commonwealth
Accord
532-533).
(pages
2d 657
461 denial to a amount would examples eral what process. due correct statement contains a
If the opinion majority trial of the judgment of the then my law, and error reversible fundamental constituted Judge inno- question of on the important was so relevantly denial to a defendant to amount or of the as cence guilt cor- habeas and writ of due consequently be granted. should pus unnecessary with the disagree
I likewise totally can that malice opinion in the holding dicta majority felonious the acts were though even presumed never dangerous or and life, undoubtedly obviously shoot- and intentionally example, wilfully, deliberately authorities A B. The in a barroom and killing ing been pre- has legal hold that malice, which malice, i.e., and from facts or circumstances are legion sumed such Blackstone Coke hoary through run from antiquity 2d 351 Pa. to Commonwealth v. 305, Wucherer, 2d 354 Pa. 47 A. 180, Commonwealth 574; Malone, 386 Pa. 445; Gibbs, Commonwealth v. Bolish, 500, 510-511, A. 2d 464. Commentaries Blackstone, 192-193; p. p. Wharton, p. §20, §21, C.J.S., §13, p. Maurer, Homicide ed. p. (3rd §2, 2, §92, 1907); Murder 915 et p. Criminal Law: Pennsylvania §3582, 953 et I p. seq.; Warren, Homicide §3689, §74 seq., §10.06, ed. Clark & 1938); Crimes (Perm. Marshall, 1958). 572 ff. ed. p. (6th presumption malice is or an inference
Legal
fact —the words are sometimes used interchangeably—
set or
arises from a
chain of circumstances
time
Fur-
we
Coke
Blackstone.
since,
repeat,
when
Commonwealth has made
out
thermore,
facie case of
premedi-
deliberate and
willful,
prima
burden
reduce
tated
defendant
killing
upon
to murder in the
such a
second
volun-
killing
degree
*10
tary manslaughter: Commonwealth
Romanic,
166 A.
902; Commonwealth v.
171 Pa.
Mika,
273,
65; Commonwealth v.
234 Pa.
Reed,
601; Commonwealth
58 Pa.
Common
Drum,
wealth v.
326 Pa.
Carroll,
I agree with majority’s conclusion that the re- lator’s are contentions devoid of merit and he deprived of due process or of other Constitutional right.
Independent School District Chewton
Appeal. Argued September 1960. Before J., C. Jones, Bell, Boh and Musmanno, Jones, JJ. Cohen, Eagen,