Opinion by
Mr. Justice Benjamin R. Jones,
The defendant, having been found guilty of murder in the first degree with the death penalty affixed and having been sentenced to death, appeals from the refusal of the Court below to grant him a new trial.
Wallace Russell died as a result of wounds received in a shooting which took place on September 13, 1949 in a drinking place known as the Barbary Coast Club in Pittsburgh. The defendant, charged with having shot Russell, was indicted for murder and manslaughter in connection with his death. After a trial by jury, in January, 1950 defendant was found guilty of murder in the first degree with the death penalty affixed and sentenced to death. This conviction was upheld by this Court in a unanimous opinion (Com. v. Thompson, 367 Pa. 102, 79 A. 2d 401); a petition for reargu[385] ment was refused and the U. S. Supreme Court denied certiorari (Thompson v. Commonwealth, 342 U. S. 835, 96 L. Ed. 631, 72 S. Ct. 58).
Then ensued a long series of legal proceedings which, resulted eventually in a new trial for the defendant.1
The defendant was retried and, at this new trial, the jury returned a verdict finding the defendant guilty of murder in the first degree, with the death penalty attached. A motion for a new trial having been refused by the court en banc the defendant was sentenced to death. Prom that judgment of sentence this appeal was taken.
[386] At approximately seven o’clock on the evening of September 13, 1949, the defendant entered a drinking place located at 20 Townsend Street, Pittsburgh, known as the Barbary Coast Club. Previously on the same day the defendant had been in this club, after sometime he left there and, when he returned, he had in his possession a .45 caliber Colt revolver. When the defendant returned there were present, among others, one Aaron Daniels, a patron, and one Wallace Bussell, the bartender. Bussell and Daniels had been engaged in a conversation and Daniels was turning from the bar to leave the place when he was shot through the left arm by the defendant and then Bussell was shot by defendant according to the Commonwealth’s version which was denied by the defendant. There was some testimony that before any shot was fired, the defendant said “This is a stick-up, don’t nobody move.” There was also some testimony that the bartender said “Don’t kill me, if you want the money take the money. Don’t kill me”, that the bartender raised his hands in the air from behind the bar and that the defendant shot him through the abdomen, inflicting wounds from which Bussell died. There was also some testimony that the defendant had reached into the bartender’s pocket and some testimony that defendant had gone behind the bar to the cash register and that, when backing toward the door to make an exit from the place, the defendant said “Nobody move, if you do, I will kill you.” Five witnesses testified on behalf of the Commonwealth to the events surrounding the shooting.
At the second trial, the defendant did not testify. However, the Commonwealth offered in evidence a statement made to the police by defendant the day following the shooting, and defendant’s testimony at the first trial and at the habeas corpus proceedings. Ac[387] cording to defendant’s statement to the police he went to the Barbary Coast Olnb at approximately two o’clock in the afternoon; after some time there, he got into an altercation about dancing with a woman with the reputed owner, one Johnny Taylor; according to the defendant, Taylor kicked him while Bussell held a gun on him and defendant was forced to leave the premises; the defendant stated that he then went to his home to get his gun, at first stating that he got the gun and went back to kill somebody because somebody had kicked him and later stating that he secured the gun not to kill anyone but to talk it over with Johnny Taylor. Defendant stated that he returned to the Barbary Coast hoping to talk it over, that he remembered firing only one shot: “Q. How many shots did you fire from this revolver? A. I don’t remember but firing one. Q. And who did you fire that at? A. The fellow that I killed.” Pie stated that he then left. According to defendant’s testimony at the first trial, defendant went to the Barbary Coast Club at approximately three o’clock in the afternoon, saw one Susie Horton there and got into an altercation with Johnny Taylor about dancing with the Horton woman; Taylor threatened to evict him; defendant started to back toward the door, Johnny Taylor kicked him and he saw a gun pointing at him; at that time the defendant stated he had drunk four pints of moonshine and had been smoking marihuana; defendant stated that he went home, secured his gun and returned to find out why he was kicked out of the Barbary Coast; upon his return, he saw a man (apparently Daniels) lying on a table; that the bartender, Bussell, started after him with a gun in his hand and that if he, the defendant fired his gun, he had no recollection of the incident; he denied he said anything about a stick-up or that he tried to take any money from any person. At the habeas corpus pro[388] ceedings the defendant testified that, after he was thrown out of the Barbary Coast, he did not leave the premises but went downstairs and there met one Oscar Carey who gave him a gun; that he went upstairs with the gun and the bartender ran toward him with a gun and grabbed him by the collar; he did not admit firing any shot but he did admit that he told some friends later that he had “shot somebody” and that he had been drinking.
It is highly significant that one of defendant’s own witnesses, upon cross-examination, testified that shortly after the shooting the defendant came to her home and that, after he had left her home, she saw on the stairs a wallet in which was the social security card of the deceased Bussell. Oscar Carey, a rebuttal witness for the Commonwealth, testified that the gun had been taken by the defendant from Carey’s home shortly before the shooting, without Carey’s knowledge; he denied that he had given the gun to the defendant in the downstairs area of the Barbary Coast Club and he testified that he was present when the defendant dropped the wallet in which he found not only the deceased’s social security card, but also a numbers slip and six dollars. The defendant, in neither his statement nor his testimony at the previous proceedings, denies that he fired a shot and the testimony of several witnesses Avho saAV and talked with him after the shooting is to the effect that defendant acknoAvledged having shot someone. Although the defendant testified that he was rushed or attacked by the bartender, he at no time stated that by such tactics he was ever put in fear or in terror or that when he fired the shot he was acting under the compulsion of any fear.
The OommonAvealth proceeded upon two theories: (1) that the killing of Russell took place during the commission of a robbery and, (2) even if that had not [389] been established, the killing was accomplished wilfully, deliberately and with premeditation. The principal defense 2 was that when the defendant returned to the Barbary Coast, he was attacked by Bussell, who then had a gun in his hand, and that, if the defendant did shoot, it was an act of self-defense.
On this appeal, the defendant urges that the Court below erred in three respects: (1) that the Court erred in its instructions to the jury relative to the law of self-defense and voluntary manslaughter; (2) that the Court erred in permitting the reception into evidence of a court-martial record of the defendant to assist the jury in determining the appropriate penalty in the event that defendant was found guilty of murder in the first degree; (3) that the Court erred in proceeding to trial without having disposed of a writ of habeas corpus mailed to the Court by the defendant.
The defendant urges that the Court erred in its charge: that the jury should have been instructed that, although it might conclude that the defendant had not established self-defense by a fair preponderance of the evidence, yet it may and should consider the evidence offered in support of self-defense in determining whether the defendant was guilty of voluntary manslaughter because of having acted under an uncontrollable fear of death or serious bodily harm, even though such fear might have been unreasonable. Stated in another manner: should the Court have instructed the jury that “where self-defense is not properly made out, the jury may consider that the defendant acted under uncontrollable fear of death or serious bodily harm, even though the fear was an unreasonable one”: Com. v. Banks, 376 Pa. 531, 534, 103 A. 2d 726.
[390] The defendant relies upon Com. v. Colandro, 231 Pa. 343, 352, 80 A. 571, wherein we stated: “While the evidence might not have been sufficient to satisfy the jury that the plea of self-defense had been sustained, it might have appealed to them as sufficient to negative or to throw such a doubt upon the element of malice as to reduce the crime to manslaughter. Therefore, in addition to the instruction on the law of self-defense, the jury should have been told, if they found that at the time of the shooting the defendant was not actuated by malice, but that he acted under the influence of an uncontrollable mortal fear raised by the threats and conduct of Boceo, and if they thought that the immediate circumstances, though adequate to raise the fear, were not sufficient reasonably to justify a belief on the part of the defendant that he was in immediate danger of death or great bodily harm, the grade of the crime would not rise higher than manslaughter.” This language must be read in context with the factual situation in the Golandro case. In that case, there was testimony that for three months prior to the shooting the deceased had demanded, money of the defendant, that deceased produced a revolver and threatened to kill defendant unless his demands were complied with, that deceased’s threats continued until the afternoon of the day of the shooting, that deceased sent a messenger to defendant conveying similar threats and at the time of the shooting when the deceased entered the room, he repeated his threats, started to shoot and the defendant was placed in fear. In the Golandro case, the Court instructed the jury that there was only “one issue” — self-defense—•, that the possibility of manslaughter was not present and that it was necessary for the defendant to satisfy the jury that his version of the shooting was correct.
[391] Com. v. Principatti, 260 Pa. 587, 104 A. 53, which applied the rule of the Oolanclro case, also is unlike the instant case: approximately 9 days prior to the shooting, deceased told defendant he was a member of the “Black Hand” assigned to kill defendant for having killed a member of that organization and that the matter could be fixed up for two hundred dollars; that the defendant believed that which deceased told him; when deceased was found, he had a stiletto, 3 loaded cartridges and a razor on his person and there was testimony that defendant knew deceased’s dangerous reputation and feared him. This Court held it was error to exclude proof of deceased’s threats to defendant and in refusing to permit defendant to show that when he saw the revolver in deceased’s hands, he was thrown into such a passion of terror, as a result of the previous uttered threats, that he killed deceased while under the influence of such terror. In the Principatti case we noted that evidence that, just before the shooting, deceased turned toward defendant drawing a revolver which defendant saw in deceased’s hands “would not be sufficient to show a provocation which would justify killing in self-defense, or even such a passion of fear as to reduce the alleged crime to manslaughter” (pp. 596, 597) : a factual situation very similar to the factual situation herein related by defendant.
Other decisions of this Court which have applied the Galandro rule also presented dissimilar situations: Com. v. Miller, 313 Pa. 567, 170 A. 128 in which the Court, although it left to the jury the right to return a verdict of voluntary manslaughter, stated that defendant was either guilty of murder or nothing and that a verdict of manslaughter could not be supported by the facts; Com. v. Flax, 331 Pa. 145, 200 A. 632, in which the Court withdrew from the jury consideration of manslaughter and in which there was positive tes[392] timony that defendant was acting in fear; Com. v. Broeckey, 364 Pa. 368, 372, 373, 72 A. 2d 134 in which defendant’s plea for acquittal was based on self-defense, the Court failed to distinguish between voluntary manslaughter and self-defense and the “charge of the court precluded a verdict of not guilty”; Com. v. Banks, supra, in which the Court, although leaving manslaughter to the jury, stated that there was no evidence to sustain a verdict of voluntary manslaughter — this despite the fact that there was positive testimony that the defendant was “scared” by the deceased’s actions and “by being scared” defendant’s gun went off.
In Com. v. Cargill, 357 Pa. 510, 55 A. 373 the facts were somewhat similar to the case at bar. In that case, deceased operated a gambling house in which defendant had lost heavily two days prior to the shooting; the defendant went to the gambling house and, while discussing with deceased the money which he had lost, the deceased suddenly jumped up from his chair with his hand on his gun; defendant began shooting because he knew that deceased had a gun and feared him because of his bad reputation; the defense was self-defense. We there upheld a charge much more general on the subject of voluntary manslaughter than the charge herein examined.
The Court below in this case instructed the jury, inter alia, as follows: “The other grade of the crime to which we have referred is voluntary manslaughter. Manslaughter is the killing of a person without malice. It is committed when the death is intentionally brought about, but brought about under the influence of passion. As here used, the term ‘passion’ includes both anger and terror, provided they reach a degree of intensity sufficient to obscure temporarily the reason of the person affected, namely any of the emotions of the mind known as anger, rage, fear, sudden resentment [393] or terror, rendering the mind incapable of cool reflection. Therefore, to reduce an intentional blow, shot, stroke or wounding resulting in death, to voluntary-manslaughter, there must be a sufficient cause of provocation and a state of rage or passion, without time to cool, placing the prisoner beyond the control of his reason and suddenly impelling him to the deed.” (Emphasis supplied)
“Now, on the other hand, in order to reduce it below murder in the second degree, there must be evidence showing that the act was committed under the influence of passion, depriving the person acting in committing the crime of the ability to control himself, temporarily obscuring his reason”.
After noting that defendant’s counsel in his summation to the jury had stated that defendant was acting in self-defense the Court below charged completely and fully on the subject of self-defense. Of that instruction, the defendant makes no complaint.
In concluding his charge, the trial judge said to the jury: “Fourth, was the killing committed in the heat of passion, as described heretofore in the charge? If you find that it was, as a fact, you would then be justified in returning a verdict of guilty of voluntary manslaughter. Or, fifth, did the defendant act in self-defense, as that term has been described to you? If you find that he did, as a fact, you would then be justified in returning a verdict of not guilty.”
At the conclusion of the charge when asked by the Court whether any further instructions were requested, defendant’s counsel made no request. No exception, general or special, was taken to the charge and no objection thereto raised by defendant’s counsel. It would appear that at the time counsel were satisfied with the instructions.
[394] The instructions must be read in their entirety and with relation to the evidence which was presented. In Com. v. Almeida, 362 Pa. 596, 600, 68 A. 2d 595, we stated: “There is no rule more firmly established in law than that which was reiterated in Commonwealth v. Thompson, 321 Pa. 327, 330, 184 A. 97, to wit: ‘The charge must be read as a whole, and excerpts therefrom must be read in relation to the context. It cannot properly be separated into parts and these treated piecemeal. . . . (citing cases). In Harman et ux. v. Chambers, 358 Pa. 516, 519, 57 A. 2d 842, Mr. Justice Jones speaking for this Court said: ‘In scrutinizing a trial court’s instructions to the jury for possible error, the charge must be read and considered as a whole.’ ”
An examination of the present charge in its entirety is convincing that the jury were well, properly and adequately instructed both on self-defense and voluntary manslaughter. The Court informed the jury that when a killing takes place, without malice but intentionally, but brought about by passion, including fear and terror, such a killing would be voluntary manslaughter. At no place in the charge nor in any manner whatsoever did the Court even intimate to the jury that they could not find the defendant guilty of voluntary manslaughter. A trial court is not required to use any particular language in instructing a jury provided that the language employed adequately and fully conveys to the jury the law applicable to the facts in the case. The Court below fully instructed the jury and a reading of the entire charge is persuasive of the conclusion that the jury fully understood that if they believed the defendant shot Russell under the sway, compulsion and influence of fear or terror, however unreasonable it may have been, they could find the defendant guilty of voluntary manslaughter.
[395] An analysis of the evidence produced at this trial fails to reveal a single instance where the defendant, expressly or impliedly, indicates that he was placed in any fear or terror or that he shot Russell while under the influence of such fear or terror. While defendant urges that the Court should have charged in the language of the Golandro case, supra, he fails to point to any evidence which would have justified the language of such a charge. There is no duty on a trial judge to charge and instruct a jury upon law which has no applicability to the presented facts: there must be some relationship between the law upon which an instruction is required and the evidence presented at the trial. For instance, a court is not required to instruct on the law applicable to an alibi, if the record fails to reveal any evidence upon which alibi may be premised. However, despite the lack of 'any evidence in this respect, the court below in the exercise of an abundance of caution fully and adequately instructed the jury on voluntary manslaughter and its possibility as a verdict. Evidently even defendant’s counsel before the verdict were satisfied with the Court’s charge because they failed either to request additional instructions or to except to the instructions as given. The words of the late Chief Justice Maxey in Com. v. Barnak, 357 Pa. 391, 419, 54 A. 2d 865 are particularly apposite: “Taking an appeal in criminal cases is not a game in which the appellant wins if he can show the trial judge fell a few degrees short of perfection in the conduct of his trial.”
We find no error of commission or omission in the instructions of the Court below.
Defendant’s second assignment of error relates to the admission in evidence of the record of prior convictions of defendant. First, the Commonwealth offered in evidence a record- of - the Allegheny County [396] Court indicating that defendant, under the alias of Robert Patterson, had been convicted of felonious assault and sentenced to the Allegheny County Work House for a term of 6 to 18 months; to this offer no objection was made and, apparently, the admission of this particular record is not assigned as error. Second, the Commonwealth offered in evidence the record of a general court-martial dated May 23, 1943, convened at Whittington Barracks, Lichfield, Stafford-shire, England wherein the defendant was Cleveland Thompson, the present defendant: at that court-martial Cleveland Thompson was charged with violating the 93rd Article of War in three specifications. The first specification charged defendant with having committed an assault, with the intent to commit a felony, namely murder, by shooting Private Albert Johnson in the shoulder with a rifle; the second specification charged defendant with having committed an assault, with intent to do bodily harm, by shooting Private Wilbur Adkins in the foot with a rifle; the third specification charged defendant with having committed an assault, with intent to do bodily harm, by shooting Private John Camp in the buttocks with a rifle; all three assaults were alleged to have taken place at Whittington Barracks on November 27, 1942. The record, properly authenticated, indicates that defendant entered a plea of guilty to the first specification and pleas of not guilty to the second and third specifications; the findings on all three specifications and the charge were guilty and the defendant was sentenced to the Disciplinary Training Center No. 1, Shepton Mallet, Somerset, England. The objection to the admission of this court-martial record was based on the ground that such a record lacked judicial authority and finality and was not to be considered a prior conviction by a court recoghized as a judicial tribunal.
[397] By this assignment of error two separate questions are presented: (1) whether any record of a prior conviction should be permitted in evidence in a homicide trial? and (2) even if records of prior convictions are generally admissible in evidence, was this court-martial record within the class of admissible records?
Prior to the Act of 1925,3 neither a court nor a jury had any discretion in fixing the penalty for murder in the first degree (Com. v. Bishop, 285 Pa. 49, 59, 131 A. 657) and a verdict of murder in the first degree automatically carried with it the penalty of death. (Com. v. Madaffer, 291 Pa. 270, 275, 139 A. 875).
The Act of 1925, supra, placed in the jury the right to fix the penalty, after a verdict of murder in the first degree, either at life imprisonment or death. With the advent of that Act of Assembly, a new concept concerning the admission of records of prior convictions against a defendant in a homicide case was enunciated in Com. v. Parker, 294 Pa. 144, 152, 153, 143 A. 904. The late Mr. Chief Justice Yon Moschzisker speaking for this Court, stated: “Therefore, under such acts [those empowering a jury in its discretion to choose for the defendant a sentence of either death or life imprisonment], it should not necessarily be accounted reversible error if the trial judge, in the exercise of his discretion, allows the jury the same sort of information that a judge considers when deciding as to punishment for crime.” Further, the Court said (pp. 154, 155) : “While, under the Act of 1925, the jury are supposed to determine the degree of defendant’s guilt before assessing the punishment (Com. v. Curry, 287 Pa. 553, 558), yet the act requires both the question of guilt and the punishment to be covered by one verdict. [398] It may be that, if under any circumstances evidence of other offenses than the one on trial is admitted as helpful to the jury in the performance of its duty in assessing the punishment, such proof will inevitably be used by it in determining the guilt of the prisoner. This is not an insurmountable objection. . . . The Act of 1925 was not passed to help habitual criminals, and we take judicial knowledge of the fact that offenders of that designation have become so general that the law, not only lex scripta, but non scripta, must advance to protect society against them. This being so, in a case like the present,, where the trial judge was. convinced from the confessions of the defendants, as the Court below evidently was, that they were habitual offenders against society,- — robbers, burglars, and, as occasion arose, murderers, — -where the evidence indicated such to be their general manner of life, and where the defendants asked that, if convicted, the jury, in assessing punishment, extend mercy to them, we cannot say it was reversible error to receive their full confessions in evidence, even though it is possible that the admissions therein of other offenses may have militated in a general way against defendants.” The Parker rule, without limitation, was followed in Com. v. Mellor, 294 Pa. 339, 144 A. 534; Com. v. Schroeder, 302 Pa. 1, 152 A. 835; Com. v. Dague, 302 Pa. 13, 152 A. 839; Com. v. Flood, 302 Pa. 190, 153 A. 152 and Com. v. Nafus, 303 Pa. 418, 154 A. 485.
In Com. v. Williams, 307 Pa. 134, 152, 160 A. 602, this Court, following the Parker rule, stated . . evidence as to prior convictions to aggravate the penalty must be strictly limited . . . Where the trial judge is convinced that such crime was committed for profit, such as the crimes of highway robbery, burglary, murder for life insurance, bank holdups, and the like, and that the criminals are habitual offenders against so[399] ciety, then prior convictions may properly be received by the jury as an aid in determining the penalty to be inflicted. ... It is also possible that there are other kinds of homicide where death is the result of sordid passion, which ought to be followed by the death penalty, where prior convictions could be used. But in no case should a record of such criminal acts such as pickpocketry, adultery, embezzling, perjury, or others of a similar nature be used in aggravation of the penalty.”
For almost three decades in Pennsylvania it has been a well established and recognized rule of law that evidence of prior offenses committed by the defendant, whether proven by records of prior convictions, by written or oral statements made by the defendant or elicited upon cross-examination of the defendant, is admissible in a homicide trial. The admissibility of such evidence is not for the purpose of enabling the jury to consider such evidence in determining the guilt or the innocence of the defendant, but solely for the purpose of enabling the jury, after a defendant has been found guilty of murder in the first degree, to decide what penalty should be imposed on the defendant. Being admissible solely to aid the jury in its determination of the penalty to be imposed and whether the defendant is entitled to mercy, its limitation of use must be carefully and specifically emphasized by the ¿rial judge in his instructions to the jury.4 Com. v. Lehman, 309 Pa. 486, 164 A. 522; Com. v. Kurutz, 312 Pa. 343, 168 A. 28; Com. v. Stabinsky, 313 Pa. 231, 169 A. 439; Com. v. Harris, 314 Pa. 81, 171 A. 279; Com. v. Thompson, 321 Pa. 327, 184 A. 97; Com. v. Clark, 322 Pa. 321, 185 A. 764; Com. v. Rose, 327 Pa. 220, [400] 193 A. 17; Com. v. Hawk, 328 Pa. 417, 196 A. 5; Com. v. Stelma, 327 Pa. 317, 192 A. 906; Com. v. Hipple, 333 Pa. 33, 3 A. 2d 353; Com. v. Petrillo, 341 Pa. 209, 19 A. 2d 288; Com. v. Childers, 346 Pa. 258, 29 A. 2d 471; Com. v. Johnson, 348 Pa. 349, 35 A. 2d 312; Com. v. Jones, 355 Pa. 594, 50 A. 2d 342; Com. v. Holley, 358 Pa. 296, 56 A. 2d 546; Com. v. Simmons, 361 Pa. 391, 65 A. 2d 353; Com. v. DePofi, 362 Pa. 229, 66 A. 2d 649; Com. v. Niemi, 365 Pa. 105, 73 A. 2d 713; Com. v. Johnson, 368 Pa. 139, 81 A. 2d 569; Com. v. Turner, 371 Pa. 417, 88 A. 2d 915; Com. v. Johnson, 372 Pa. 266, 93 A. 2d 691; Com. v. Lowry, 374 Pa. 594, 98 A. 2d 733; Com. v. Burdell, 380 Pa. 43, 110 A. 2d 193; Com. v. Cannon, 386 Pa. 62, 123 A. 2d 675.
Under the application of this rule, a defendant may offer evidence of a mental weakness, falling short of legal insanity, to enable the jury to fix the penalty (Com. v. Stabinsky, supra; Com. v. Hawk, supra); records of prior convictions are admissible even though defendant’s sentence was suspended and he was placed on probation (Com. v. Simmons, supra), or even pardoned (Com. v. Cannon, supra); records of a prior conviction in a foreign jurisdiction are admissible (Com. v. Holley, supra), but proof simply of arrests is not admissible (Com. v. Johnson, supra; Com. v. Turner, supra).
From Com. v. Williams, supra, through Com. v. Petrillo, supra, we limited the record of prior convictions and offenses to those involving habitual offenders, professional criminals or to murders of a cold blooded or atrocious nature. However, in Com. v. Cannon, supra, where the error alleged was the 'admission of a record of a prior conviction of crime neither of a sordid nor atrocious nature nor of the professional or criminal type, we said: “Neither reason nor authority limit the admissibility of prior convictions to cases where the [401] defendant was either a professional criminal or his crime one of sordid passion.” 5
In Com. v. Lowry, snpra, Mr. Justice Bell, speaking for this Court, stated: “While many Judges, including the writer of this opinion, believe that a record or prior crimes should not be admissible even under the theory of aiding the jury in fixing the penalty as permitted by the Act of May 14, 1925, P.L. 759 and its successor, The Penal Code of 1939, supra, this Court has repeatedly held such records to be admissible for the limited purpose of aiding the jury in determining the penalty if they find the defendant guilty of murder in the first degree . . .”
If the court-martial record of the defendant is not otherwise objectionable, it was properly admitted in evidence in the instant case to enable the jury to fix the penalty, in the event the jury found the defendant guilty of murder in the first degree.
When this matter was previously before this Court, the late Mr. Justice Ladner, speaking for the court (Com. v. Thompson, 367 Pa., supra, 116, 117), stated: “Finally it is urged that the trial court erred in permitting the penalties imposed upon defendant after his conviction of felonious assault and sentences imposed thereon be read to the jury. We cannot see that the admission of the penalty along with the conviction, all of which was part of the same record, did the defendant any harm, especially as the record was that of a court-martial where the sentence following the conviction must be approved by the commanding officer and such sentence and approval are all part of one document.” The defendant now urges that at that time [402] only the admissibility of the penalty attached to the conviction, not the conviction itself, was raised; however it is evident that at that time this Court approved the admission of both the conviction and the penalty into evidence.
“A court-martial is a military or naval tribunal . . . having special and limited jurisdiction both in time of peace and war over offenses against the laws of the service, military or naval, in which the offender is engaged”; 6 C.J.S. §51, p. 440. While courts-martial are not part of the judicial power of the U. S. and not included in the judicial part of the government (Kinsella v. Krueger, 351 U. S. 470, 76 S. Ct. 886, 100 L. Ed. 1342) the authority for their creation by the Congress arises under Article I, Sec. 8 of the Constitution (Wade v. Hunter, 72 F. Supp. 755; U. S. ex rel. Creary v. Weeks, 259 U. S. 336, 42 S. Ct. 509, 66 L. Ed. 973).
When within the territory of another government courts-martial may exercise jurisdiction over all persons and offenses subject thereto, wherever the army may happen to be at the time (Perlstein v. Hiatt, 57 F. Supp. 123 Aff'd. 151 F. 2d 167, cert. den. 327 U. S. 777, 80 L. Ed. 1005, 66 S. Ct. 956).
The decisions of courts-martial are not reviewable by the civil courts except to determine whether a court-martial had jurisdiction or whether it exceeded its powers; the guilt or innocence of the defendants cannot be inquired into (Hunter v. Wade, 169 F. 2d 973, 9 A.L.R. 2d 277). A judgment of a court-martial is not subject to a direct review by a civil court (Yamashita v. Styer, 327 U. S. 1, 90 L. Ed. 499, 66 S. Ct. 340), although it may be open to collateral attack on limited grounds, i.e. whether it had jurisdiction over the offense and the person and whether the sentence was one authorized by law (Collins v. McDonald, 258 U. S. 416, 66 L. Ed. 692, 42 S. Ct. 326; Hiatt v. Brown, 339 U. S. 103, 94 L. Ed. 691, 70 S. Ct. 495) and whether any con[403] stitutional questions are involved (U. S. ex rel. Innes v. Hiatt, 141 F. 2d 664). However, civil courts will not review the merits of a case tried before a court-martial (Yamashita v. Styer, supra; Humphrey v. Smith, 336 U. S. 695, 93 L. Ed. 986, 69 S. Ct. 830; Sanford v. Robbins, 115 F. 2d 435).
“The judgment of a military court or court-martial, properly constituted, is res judicata, and its proceedings are not open to review in any other court”: Wharton’s Criminal Evidence (12th ed.), Vol. 2, §642, p. 534. In Ex parte Reed, 100 U. S. 13, 23, 25 L. Ed. 538, it was said concerning a court-martial: “It is the organism provided by law and clothed with the duty of administering justice in this class of cases. Having had such jurisdiction, its proceedings cannot be collaterally impeached for any mere error or irregularity, if there were such, committed within the sphere of its authority. Its judgments, when approved as required, rest on the same basis, and are surrounded by the same considerations which give conclusiveness to the judgments of other legal tribunals, including as ivell the lowest as the highest, under lilce circumstances. . . .” (Emphasis supplied). See also: Dynes v. Hoover, 20 How. 65, 15 L. Ed. 838; Swaim v. U. S., 165 U. S. 553, 41 L. Ed. 823, 17 S. Ct. 448.
We have no authority to inquire into or review the record of a court-martial; its judgment is conclusive on this and other civil courts, except as set forth, supra. At the time this court-martial was summoned, the defendant aves in the military sendee and therefore subject to military law: the offenses charged were against military personnel. The jurisdiction of the court-martial over both the person of the defendant and the offenses charged is obvious from the record. No collateral attach on this conAdction has been made. We are bound by this record, as by the record of any civil [404] court of competent jurisdiction. That subsequent to World War II a new method of reviewing the actions of courts-martial has been provided by the Congress is of no significance in the instant case, in the absence of any evidence or even suggestion, that the defendant was not properly convicted or that the reviewing officer failed in his duty. The defendant’s conviction of three separate offenses of violence was properly admitted into evidence by the Court below.
In this connection it is necessary to point out that the defendant in his testimony at the first trial — admitted, without objection, at the second trial — admitted having shot the three soldiers while in England. The court-martial record merely confirmed the defendant’s admission. Even without the admission of the court-martial record, the fact of the prior offense of the defendant would have been before this jury, without any objection by the defendant. Under these circumstances, even if the admission of the court-martial record was error — which it was not — such error would have been harmless.
The third assignment of error concerns an alleged writ of habeas corpus which was not filed nor docketed until after the conclusion of defendant’s trial. There is nothing on record before us to indicate when the writ of habeas corpus was received by the Court below. All that is indicated is that the writ was filed after the trial, heard by the Court below and dismissed. We have before us no appeal from that action of the lower Court nor anything upon which to predicate a finding that the defendant’s rights were in any manner prejudiced or harmed in this respect. It is fundamental that a writ of habeas corpus does not act as a supersedeas to delay a proceeding such as a homicide case. As a matter of fact there is on record nothing to indicate the basis upon which the writ was requested. We find no error in this respect.
[405] In accordance with the Act of February 15, 1870, P. L. 15, §2, 19 PS §1187, we have reviewed both the law and the evidence in this record and have determined that all the ingredients necessary to constitute murder in the first degree have been proved to exist.
It may not be amiss to point out that this defendant on two separate trials before two different juries has been found guilty of murder in the first degree with the death penalty attached. Almost eight years have elapsed since the shooting took place. During that period of time both in the State and the Federal Courts the defendant has had full and complete opportunity to present his cause; his rights have been properly and adequately safeguarded and protected; every consideration and protection known to the law have been afforded him. The killing of which he stands accused was a cold blooded killing; after a fair and impartial jury trial he again stands convicted of murder in the first degree. The language of the late Mr. Justice Jackson of the U. S. Supreme Court in Stein v. N. Y., 346 U. S. 156, 197, 97 L. Ed. 1522, 73 S. Ct. 1077, is particularly applicable: “The people of the State are also entitled to due process of law”.
The judgment is affirmed and the record is remitted to the court below for the purpose of execution.
Mr. Chief Justice Jones concurs in the judgment of affirmance.
Mr. Justice Cohen took no part in the consideration or decision of this case.