Opinion
Submitted November 16, 1959.
January 18, 1960.
Criminal law — Constitutional law — Double jeopardy.
1. A defendant in a criminal case may not by his own voluntary action seek and obtain a reversal of judgment, and thereupon take advantage of such reversal to secure full release from punishment properly imposed as a sentence, upon legal conviction at the trial he so obtained; in such a situation the defendant waives any benefit of the provision against double jeopardy in order to obtain the greater benefit of a review and reversal of his conviction and sentence by the court. [164-5]
Criminal procedure — Habeas corpus — Grounds — Trial errors.
2. In this habeas corpus proceeding in which it appeared that petitioner was serving the balance of his sentence on a conviction of murder in the second degree and claimed that he was subjected to double jeopardy when tried a second time, that the trial court committed error in charging the jury and that there were errors concerning the admissibility of evidence, it was Held that there was no merit to any of relator's contentions and that the court below had properly dismissed the petition. [164-5]
Mr. Justice MUSMANNO dissented.
Before JONES, C. J., BELL, MUSMANNO, JONES, COHEN, BOK and McBRIDE, JJ.
Appeal, No. 299, Jan. T., 1959, from order of Court of Common Pleas No. 5 of Philadelphia County, March T., 1959, No. 1978, in case of Commonwealth of Pennsylvania ex rel. Ralph E. Patrick v. William J. Banmiller, Warden. Order affirmed.
Habeas corpus.
Order entered dismissing petition, order by GUERIN, J. Relator appealed.
Ralph E. Patrick, appellant, in propria persona. Arlen Specter and Domenick Vitullo, Assistant District Attorneys, Paul M. Chalfin, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.
The court below discharged the rule granted on respondent to show cause why a writ of habeas corpus should not issue and dismissed the petition for a writ of habeas corpus, and relator appealed.
Relator was adjudged guilty of murder in the first degree on February 11, 1942, and was sentenced to a term of life imprisonment in the Eastern State Penitentiary. On February 2, 1953, after hearing, a writ of habeas corpus was granted. It was determined from the record that the court that had tried him in 1942 had lost its jurisdiction so that the judgment of sentence imposed was a nullity. Consequently, under the writ granted, defendant was not discharged but was ordered to stand trial. Commonwealth ex rel. Townsend v. Burke, 361 Pa. 35, 63 A.2d 77 (1949). The subsequent new trial resulted in relator's conviction of murder in the second degree, and a new sentence of from ten to twenty years was imposed. Relator was released on parole on December 23, 1953, and subsequently on November 24, 1958, was recommitted to Eastern State Penitentiary as a technical parole violator to serve the balance of his sentence.
His present petition alleges that he was subjected to double jeopardy when tried a second time; that the lower court committed error in charging the jury; and that there were errors as to the admissibility of evidence. There is no merit to any of relator's contentions.
A defendant who has been convicted and who has secured a reversal of the judgment of conviction, either on appeal or by the granting of a writ of habeas corpus requiring a new trial, cannot secure his full release. The relator, by applying for the reversal, has waived his protection against being prosecuted again which the provision against double jeopardy (Pa. Const., Art. I, § 10) affords him. Relator was not put in jeopardy a second time, since it was only the second trial that resulted in a valid sentence. Commonwealth ex rel. Farrow v. Martin, 387 Pa. 449, 127 A.2d 660 (1956); Commonwealth ex rel. Walker v. Banmiller, 186 Pa. Super. 338, 142 A.2d 758 (1958); P.L.E., Criminal Law § 116.
Relator's other contention that the trial judge denied him a fair trial by erring in his charge to the jury is also totally without merit. Although the court did erroneously charge that relator had earlier (at the 1942 trial) been acquitted of both voluntary and involuntary manslaughter and specifically directed the jury that if it should find relator guilty of voluntary manslaughter, it must return a verdict of not guilty, the error was not of such magnitude as to oust the court of its jurisdiction. Such error could properly have been corrected upon appeal. The remedy of habeas corpus, however, cannot properly be used to correct all trial errors. Commonwealth ex rel. Brogan v. Banmiller, 184 Pa. Super. 552, 136 A.2d 141 (1957). See P.L.E., Habeas Corpus § 3. All other allegations of relator may not properly be considered in a habeas corpus petition: Commonwealth ex rel. Ketter v. Day, 181 Pa. Super. 271, 124 A.2d 163 (1956).
Order affirmed.
Mr. Justice MUSMANNO dissents.