Commonwealth Ex Rel. Johnson v. Myers

167 A.2d 295, 402 Pa. 451, 1961 Pa. LEXIS 380

• Court: Supreme Court of Pennsylvania
• Decided: January 16, 1961
• Docket: Appeal, 170
• Status: Published

Opinions

Opinion by

Mb. Justice Bok,

Belator, forty-seven years old, filed Ms petition for a writ of habeas corpus. The court below denied it and he has appealed.

He was tried on March 17, 1958, before a jury in Dauphin County on a charge of murder. Having been found guilty of that in the second degree, he was given a sentence of from ten to twenty years. The victim was his paramour, and he did her to death with his fists.

His reasons to support Ms petition for a writ are:

1. He was denied due process and equal protection of the laws because (a) He had no counsel at the preliminary hearing where he alleges his statements were taken, and (b) The indictment was not complete for it failed to state the scene of the crime and the specific time.

2. He had no jury trial within the spirit and meaning of Constitutional guarantees because of an alleged error in the Court’s charge.

3. He was forced to testify against himself by the Commonwealth’s reading into evidence his statements.

4. The evidence was insufficient to support the jury’s verdict.

It will be seen at a glance that all of these reasons relate to trial errors and hence are matters that should have been raised then or on appeal, but they were not raised at either time. It requires only sample authority to show that habeas corpus cannot be used as a substitute for an appeal: Commonwealth ex rel. Kennedy v. Myers, 393 Pa. 535 (1958), 143 A. 2d 660.

The only allegation of error that bears comment arises out of two paragraphs of the charge of the trial judge. The appellant mentions only the second, but the court below quotes both in its opinion. They follow : “It may be stated as a general rule that all homicide — now, homicide is the taking of human life by another person — that all homicide is presumed to he malicious, that is, murder of some degree, until the contrary appears in evidence.

“While it is presumed to be murder, that presumption rises no higher than murder in the second degree. The burden is upon the Common-wealth to raise it to murder in the first degree; the burden is upon the defendant to lower it to voluntary manslaughter.”

It is true that in Commonwealth v. Drum, 58 Pa. 9 (1868), Mr. Justice Agnew, sitting as trial judge, charged the jury that “all homicide is presumed to be malicious . . . until the contrary appears in evidence.” This doctrine has been modified, so that the presumption is now said to apply not to all homicide but only to “felonious homicide”: Commonwealth v. Elliott, 292 Pa. 16 (1928) 140 A. 587; Commonwealth v. Kluska, 333 Pa. 65 (1939), 3 A. 2d 398; Commonwealth v. Holt, 350 Pa. 375 (1944), 39 A. 2d 372.

The instruction was therefore erroneous.

We also take this occasion to disapprove the use hereafter of any instruction to the jury on an indictment for murder that all felonious homicide is presumed to be murder in the second degree.

In Commonwealth v. Samuel Jones, 355 Pa. 522 (1947), 50 A. 2d 317, we said, by Mr. Justice Jones, that killings by poison or by lying in wait or those committed in the perpetration or in the attempted perpetration of one of the felonies enumerated in the Act of June 24,1939, P. L. 872, 18 PS §4701, are felonious. Such felonious killings are inherently malicious and without more qualify, if the supporting facts are believed beyond a reasonable doubt, as murder as a matter of law.

It would be anomalous to assert that in showing a felonious killing by presenting facts of poisoning, of lying in wait or of felony murder, the law presumes such facts to constitute murder in the second degree when the statute expressly makes them murder in the first degree. It is unlikely that any trial judge would charge to such effect but would say straight away that these special varieties of killing were murder of the first degree. Putting these categories aside, therefore, there remain wilful, deliberate, and premeditated killings, which can be established as murder in the first degree, as we said, in Commonwealth v. Jones, supra, by facts showing a specific intent to kill, and other killings committed with malice but without a specific intent to kill, which according to their circumstances would fit the definition of murder in the second degree; these various conclusions are reached by facts and inferences, not by any presumption.

Charges to the jury about the presumption of second degree are often followed by the statement that the burden is on the defendant to lower the offense to manslaughter. The trial judge in the instant case first correctly said “until the contrary appears in evidence”, but later referred to the defendant’s burden. We disapprove the use hereafter of an instruction that refers to the defendant’s “burden”. A defendant has no burden whatever, and the word “presumption” may impress the jury as establishing the crime at the high level of second degree murder and requiring the defendant to present extenuating evidence; failing which the jury would, be required to convict him. No jury can be required to convict anybody of anything.

We think that the proper use of a presumption to set a homicide at murder disappeared when we changed the wording of Drum to that of Elliott, Kluska, and Holt and required a felonious killing. Since there was only one degree of murder at common law, a presumption of malice was originally needed to separate an unlawful killing from one that was excusable or justified. But after our amendment to the wording of Drum, the word “felonious” at once required facts to make it operate at any level and made any presumption on the subject irrelevant and misleading.

In Commonwealth v. Wucherer, 351 Pa. 305 (1945), 41 A. 2d 574, we held the presumption to be one of fact, not of law, or a “prima facie inference”, or “nothing more than an administrative assumption for procedural purposes which is always open to explanation and rebuttal”, or “a presumption or inference”. In Commonwealth v. Carluccetti, 369 Pa. 190 (1952), 85 A. 2d 391, we said that “malice was directly inferable from the conduct of the perpetrator.” Any of these expressions is preferable to saying that malice is presumed, because of the danger that the word “presumption” will appeal to the jury as establishing guilt at a definite level instead of establishing a fact which, like any other fact, cannot be considered established until it has passed the test of belief beyond a reasonable doubt. What we have hitherto called a presumption is necessarily only an inference of fact and should not be more heavily weighted.

Although we have indicated that part of the charge above quoted was erroneous, it cannot be taken advantage of in the current type of proceeding.

We have also examined the record with an eye on the other allegations of the petition, and find no merit in them. Although relator complains that he had no counsel when two confessions were taken from him, the statements show that he was advised of his right to counsel but refused one, and this was not denied. Furthermore, he was represented by competent counsel at his trial and none of the matters now presented were complained of then. Where no other overreaching appears, lack of counsel preliminary is not lack of due process: Commonwealth v. Agoston, 364 Pa. 464 (1950), 72 A. 2d 575.

The statements made by relator show a brutal beating of the victim, followed by callous neglect before she died. Malice may appear where the assault was by fist, as here, and this is a question for the jury to resolve: Commonwealth v. Dorazio, 365 Pa. 291 (1950), 74 A. 2d 125.

The evidence fully sustains the verdict and sentence.

The order is affirmed.

Mr. Justice Benjamin R. Jones concurs in the result.