Appeal, No. 223, Jan. T., 1952, from order of Court of Common Pleas No. 3 of Philadelphia County, Dec. T., 1951, No. 3288, in case of Commonwealth of Pennsylvania ex rel. John Lagana v. Cornelius J. Burke, Warden, Eastern State Penitentiary. Order affirmed.
H. R. Back, with him H. Jerome Jaspan and Back & Levy, for appellant.
Samuel Dash, Assistant District Attorney, with him Michael von Moschzisker, First Assistant District Attorney and Richardson Dilworth, District Attorney, for appellee.
Before Stern C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE MUSMANNO
When on May 9, 1940, John Lagana came to trial in Philadelphia County on an indictment for murder, he pleaded guilty and three judges then heard the evidence to determine the degree of guilt and fix the penalty.
The defendant took the stand and narrated the details of an emotionless and coolly calculated crime, brutal in its execution and fatal in its consequences. With an accomplice he entered the apartment of an elderly housekeeper, who had opened the door to his ring, and proceeded at once to render her helpless by binding and gagging her. After ransacking the apartment and finding no valuables, the two desperadoes departed without first having unbound the woman. The age and sex of the victim were such that the robbers did not need to anticipate physical resistance, nor is it likely that she could have raised a sufficient outcry to thwart their escape.
The circumstances would justify the inference that the failure of the two men to release their victim was the result of their anger in having to leave the house without loot. The housekeeper died from suffocation and strangulation.
The judges fixed the degree of murder at first degree and set the penalty at life imprisonment.
Twelve years later the defendant John Lagana filed a petition for a writ of habeas corpus alleging that his plea of guilty could support only a conviction of second degree murder and that the Commonwealth had not produced sufficient evidence to raise the crime to first degree murder. The lower court dismissed the petition and Lagana appealed to this Court.
Without giving sanction to the proposition that a writ of habeas corpus can be ...