Appeal, No. 155, Jan. T. 1949, from judgment of Court of Oyer & Terminer of Philadelphia County, July Sessions, 1948, No. 2, in case of Commonwealth of Pennsylvania v. William Parmer. Judgment affirmed.
Albert S. Oliensis, with him A. Allan Goodman, for appellant.
Raymond A. Speiser, Assistant District Attorney, with him John H. Maurer, District Attorney, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE LINN
The appellant was convicted of murder in the second degree and sentenced to imprisonment for a term of not less than seven years and two months and not more than fourteen years and four months. He received a fair trial which was reviewed by a court in banc composed of three judges who refused his motion for a new trial. He now presents but two contentions: first, that he is entitled to a new trial on the ground that he should not have been "convicted of a higher crime than his principal" who had been convicted of voluntary manslaughter: his second contention is that the trial judge erred in allowing the jury to have a copy of the indictment instead of the original which had written on it that the principal in the first degree was convicted of voluntary manslaughter.
A principal in the first degree is one who commits the crime: 4 Bl. Comm. *34; 1 East P.C. 228; 1 Hale P.C. *615; Clark and Marshall on Crimes, 4th ed.,
section 159. A principal in the second degree is one who is present when a felony is committed by another, and who aids or abets in its commission: 4 Bl. Comm. *34; 1 Hale P.C. *438, *615; 2 Hawkins P.C., chapter 29, section 7; Banson v. Offley, 3 Mod. 121, 87 Eng. Rep. 78; Clark and Marshall on Crimes, section 163. Also see Perkins, Parties to Crime, 89 U. of P. Law Rev. 581 (1941).
The appellant, Parmer, and Robert J. McGrogan, were fellow prisoners in the penitentiary on June 1, 1948, when they killed Richard Rafter, Jr., another prisoner. President Judge OLIVER, in the opinion written for the court in banc, refusing appellant's motion for a new trial, described the murder as follows: "In the morning of that day, defendant and McGrogan were seated on the steps in the exercise yard. Defendant had a small knife with a sharp, well-pointed blade about 2 1/2 inch long, concealed in his pocket. McGrogan had a knife with a 6 inch blade and also a small knife similar to the one belonging to defendant. They had been seated for some minutes when Rafter entered the yard. Either as he approached, or as he was passing the steps, McGrogan and defendant jumped up and attacked him. Rafter did not have any knife or other weapon in his possession. McGrogan struck Rafter and also stabbed him twice in the chest with his knife, leaving one would 4 to 5 inch deep and another 6 inch deep, in latter would, causing a fatal hemorrhage. McGrogan backed Rafter against the wall while the knife was still sticking in his chest and pummeled him with blows upon the face and head. Meanwhile, defendant was yelling to McGrogan such phrases as 'get him, get him,' and 'Go get him, keep after him.' Defendant was also skirting around the two struggling men getting in such blows upon Rafter as he could. He had a small knife in his hand and in his own words, 'kept swinging up and down from the shoulder to the leg.' After the fight was over, defendant's knife was
covered with blood and there was blood on his hands which he ...