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COMMONWEALTH EX REL. CAREY v. MONTGOMERY COUNTY PRISON KEEPER (05/29/52)

May 29, 1952

COMMONWEALTH EX REL. CAREY, APPELLANT,
v.
MONTGOMERY COUNTY PRISON KEEPER



Appeal, No. 114, Jan. T., 1952, from order of Court of Common Pleas of Montgomery County, Nov. T., 1951, No. 271, in case of Commonwealth of Pennsylvania ex rel. Ollie Carey v. The Keeper of the Montgomery County Prison. Order affirmed.

COUNSEL

H. R. Back, for appellant.

J. Stroud Weber, District Attorney, for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Stearne

[ 370 Pa. Page 605]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

This is an appeal from an order of the Court of Common Pleas of Montgomery County dismissing relator's petition for a writ of habeas corpus.

Relator was convicted of murder in the first degree with the penalty fixed by the jury at death. The crime was the killing of a police officer, whose death was caused by gun shot wounds while he and another police officer were pursuing relator from a burglary, in order to place him under arrest. There was ample circumstantial evidence of relator's guilt which was confirmed by his written admissions. On appeal this Court affirmed the judgment and sentence, reported in 368 Pa. 157, 82 A.2d 240.

By a petition filed in this Court on October 29, 1951, relator sought to invoke the extraordinary aid of the Act of April 22, 1903, P.L. 245, sec. 1, 19 PS 861, which empowers us to "grant a rule for new trial, nunc pro tunc," whenever we are convinced that after discovered evidence exists which "is ground for substantial doubt as to the guilt of any prisoner convicted of murder of the first degree". On November 15, 1951, we entered a PER CURIAM order refusing the petition. The allegations of after discovered evidence were wholly insufficient, even if proven, to constitute evidence of such quality and therefore could not raise substantial doubt as to guilt.

The present petition is an elaboration of the earlier one. The essence of each is the allegation that "petitioner has since discovered... that the statement made by the ballistic expert was entirely untrue in that the kind of bullet described [the fatal bullet] could have been fired, and most likely was fired, from a gun held in the hands of a policeman..." The statement that the bullet "most likely was fired" from the policeman's gun is obviously no more than a possible conclusion

[ 370 Pa. Page 606]

    from the evidence sought to be introduced. The sole evidence which relator now alleges that he will be able to produce if given a new trial is expert testimony to contradict the evidence of the Commonwealth's witness that the fatal bullet could not have come from the policeman's gun. Relator's counsel, at trial, attempted by cross-examination to contradict the Commonwealth's expert testimony that the two types of guns required different size cartridges. In addition to the vigorous cross-examination relator's counsel went so far as to try to force the regulation cartridge into the special revolver offered in evidence. The evidence now belatedly sought to be adduced would be but the further attempt at contradiction.

The writ of habeas corpus may not be substituted for an application for a new trial. In Commonwealth ex rel. Smith v. Ashe, Warden et al., 364 Pa. 93, 101, 71 A.2d 107, Chief Justice MAXEY quoted as follows from Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, 24 A.2d 1: "'The writ of habeas corpus can never be used as a substitute for an appeal.... The regularity of proceedings is not to be attacked in this way': ... 'The writ of habeas corpus should be allowed only when the court or judge is satisfied that the "party hath probable cause to be delivered"': 3 Blackstone 132,... 'A judgment cannot be lightly set aside by collateral ...


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