Summary
In Com. ex rel. Ruger v. Day, 176 Pa. Super. 479, 108 A.2d 818 (1954), the Commonwealth's evidence tended to show that the defendant therein was the perpetrator of the crime in question while that defendant's testimony showed he was an accessory before the fact of the crime.
Summary of this case from Com. v. PerkinsOpinion
October 7, 1954.
November 9, 1954.
Criminal law — Habeas corpus — Substitute for appeal — Allegation of perjured evidence — Dismissal of petition without hearing — New petition containing same contentions.
1. A writ of habeas corpus may not be used as a substitute for an appeal.
2. An attack on the evidence presented at the trial, based on an averment that it was perjured, cannot be a subject of habeas corpus.
3. Where the petitioner fails to show any cause for the issuance of a writ of habeas corpus, the petition may be dismissed without hearing.
4. Where a petition for a writ of habeas corpus is dismissed, relator's remedy is to appeal from the dismissal, not to file a new petition. Criminal law — Abortion — Evidence — Indictment — Accessory before the fact — Principal — Contradictory statements of witness — Perjury.
5. Where it appeared that defendant was charged with abortion causing death and indicted as a principal; that he admitted that he had brought to the victim's house the instrument and solution, the use of which caused death, but contended that the victim herself had made use of the instrument and the solution; and that the evidence of the Commonwealth indicated that the defendant was the actual perpetrator; it was Held that it was proper for the trial judge to instruct the jury that it could find the defendant guilty in either event.
6. A defendant may be both an accessory before the fact and a principal, and the indictment is the same whether he is the one or the other or both.
7. A mere variance in testimony, or the fact that a witness may have made contradictory statements, goes to the question of the credibility of the witness but does not necessarily indicate perjury or that the defendant was convicted on perjured testimony.
Before RHODES, P.J., HIRT, ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, JJ.
Appeal, No. 319, Oct. T., 1954, from order of Court of Common Pleas of Delaware County, June T., 1954, No. 994, in case of Commonwealth of Pennsylvania ex rel. Anthony Ruger v. Charles G. Day, Warden, State Penitentiary. Order affirmed.
Habeas corpus proceeding.
Order entered dismissing petition and refusing writ, opinion by TOAL, J. Relator appealed.
Anthony Ruger, appellant, in propria persona.
Raymond R. Start, District Attorney, Joseph E. Pappano, First Assistant District Attorney and John R. Graham, Assistant District Attorney, for appellee.
Submitted October 7, 1954.
After trial by jury in October, 1952, Anthony Ruger was convicted of abortion causing death. Section 719 of The Penal Code, Act of June 24, 1939, P. L. 872, 18 Pa.C.S.A. § 4719. Ruger was represented by two competent attorneys. There was no motion for new trial, and no appeal was taken. Ruger is now serving a term of two and one-half to ten years in the Eastern State Penitentiary. In August, 1953, he filed a petition for writ of habeas corpus alleging error in the charge of the trial judge. This petition was dismissed in a comprehensive opinion by Judge TOAL. No appeal was taken. In August, 1954, another petition for a writ of habeas corpus was filed. This second petition sets forth the same purported error in the charge of the trial judge, and alleges in addition that certain witnesses for the Commonwealth had committed perjury. The second petition was dismissed, and this appeal followed.
As an illustration of the problem confronting courts in cases of this nature, we quote verbatim appellant's statement of the questions he raises on this appeal: "1. The illegal use of statute section and substance defined therein, to embrace this indictment No. 265. said statute, section 1105 one not prescribed by Acts of Assembly to embrace the charge indictment No. 265. 2. The use and allowance of perjury testimony by trial Judge, the testimony of Mr. Anderson and Mrs. Campbell of which, in its own utterance was fact of perjury against your petitioner. 3. The Court of Common Pleas, of Delaware County, Pennsylvania did again deny your petitioner due process when the Court handed down an opinion of petition of Writ of Habeas Corpus in June term, 1953. No. 2709. where in the Court did not base their opinion in consistent with acts complained of in petition of Writ of Habeas Corpus, as prescribed by law".
It is at once apparent that appellant is attempting to use the writ of habeas corpus as the substitute for an appeal. As was said by President Judge RHODES in Commonwealth ex rel. Sharpe v. Burke, 174 Pa. Super. 350, 101 A.2d 397: "Both appellate courts of this Commonwealth have repeatedly and clearly stated the limitations of habeas corpus. It is not available to review the sufficiency of the evidence upon which a conviction is based, or for the correction of trial errors which could have been reviewed and corrected on appeal; it is not a substitute for an appeal or for a writ of error or for a motion for a new trial". See also Commonwealth ex rel. Harris v. Burke, 374 Pa. 43, 96 A.2d 909; Commonwealth ex rel. Sell v. Tees, 176 Pa. Super. 57, 107 A.2d 205. Furthermore, assuming that his first contention could properly be raised by habeas corpus, appellant's remedy was to appeal from the dismissal of the prior petition, not to file a new petition: Commonwealth ex rel. Allen v. Claudy, 170 Pa. Super. 499, 87 A.2d 74. And see Commonwealth ex rel. Dote v. Burke, 173 Pa. Super. 192, 96 A.2d 151.
Overlooking the fact that appellant did not appeal from his conviction, or from the dismissal of his first petition, our review does not disclose error in the charge of the trial judge. Appellant was indicted as a principal. He admitted on the witness stand that he brought to the victim's home the instrument and the solution, the use of which caused almost immediate death. He contended that the victim made use of the instrument and the solution herself. The evidence of the Commonwealth indicated that appellant was the actual perpetrator. It was proper for the trial judge to instruct the jurors that they could find appellant guilty in either event. Section 1105 of The Penal Code, supra, 18 PS 5105. A defendant may be both an accessory before the fact and a principal, and the indictment is the same whether he is the one or the other or both: Commonwealth v. Mendola, 294 Pa. 353, 144 A. 292. See also Commonwealth v. Heffelfinger, 82 Pa. Super. 351; Commonwealth v. Weldon, 159 Pa. Super. 447, 48 A.2d 98.
Appellant's second contention is also without merit. An attack on the evidence presented at the trial, based on an averment that it was perjured, cannot be a subject of habeas corpus: Commonwealth ex rel. DePoe v. Ashe, 167 Pa. Super. 23, 74 A.2d 767; Commonwealth ex rel. Cobb v. Burke, 176 Pa. Super. 60, 107 A.2d 207. In any event, a mere variance in testimony, or the fact that a witness may have made contradictory statements, goes to the question of the credibility of the witness but does not necessarily indicate perjury or that the defendant was convicted on perjured testimony: Commonwealth ex rel. McCurdy v. Burke, 175 Pa. Super. 482, 106 A.2d 684. The writ of habeas corpus may not be used to re-examine matters of fact which were passed on by the jury at the trial: Commonwealth ex rel. Geiger v. Burke, 371 Pa. 230, 89 A.2d 495; Commonwealth ex rel. Lepera v. Burke, 173 Pa. Super. 627, 98 A.2d 408.
Appellant's final contention, as we understand it, is that the court below denied him due process by dismissing his original petition. This contention obviously has no merit and does not require discussion. Since appellant failed to show any cause for the issuance of the writ, the petition was properly dismissed without hearing. See Commonwealth ex rel. Comer v. Claudy, 174 Pa. Super. 494, 102 A.2d 227; Commonwealth ex rel. Robinson v. Baldi, 175 Pa. Super. 550, 106 A.2d 689.
The order of the court below is affirmed.