Appeal, No. 120, Jan. T., 1953, from order of Court of Common Pleas No. 4 of Philadelphia County, March T., 1952, No. 730, in case of Commonwealth of Pennsylvania ex rel Frank Harris v. C. J. Burke, Warden, Eastern State Penitentiary. Order affirmed.
Herbert L. Maris, for appellant.
Samuel Dash, Assistant District Attorney, with him Martin Vinikoor, Assistant District Attorney, 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. CHIEF JUSTICE HORACE STERN
The facts presented by relator on this appeal would seem reasonably to justify his claim that he is entitled to some relief, but he has mistaken his remedy.
At about 2:00 A.M. on March 4, 1926, relator and a companion, one McQueen, were walking north on Tenth Street above Lombard Street, in Philadelphia. They were accosted by two policemen. Relator and McQueen drew their revolvers, and shots were exchanged by relator and the two officers but not by McQueen. McQueen was killed by a bullet from the revolver of one of the parties. Relator and the officers all had.38 caliber weapons. The fatal bullet was a .38 caliber full metal patch bullet, that is, one having a metal alloy jacket casing over the lead bullet core. At relator's trial he testified that his cartridges were soft lead bullets, and that cartridges of the type extracted from
the body of McQueen were too long to fit in the chamber of his revolver, -- that it was impossible to close his revolver into firing position with such a cartridge. The live cartridges from relator's weapon were not produced at the trial and no attempt was made to demonstrate physically that metal patch bullets would not fit in the chamber of his revolver. The trial judge left to the jury the factual issue as to whose bullet it was that inflicted the fatal would upon McQueen, and instructed them that the defendant must be acquitted if it was not he who shot McQueen. This obviously was a correct statement, at least as far as murder in the first degree was concerned, inasmuch as there was no claim on the part of the Commonwealth that at the time of the shooting relator and McQueen were, or had been, engaged in the commission of any of the felonies enumerated in the criminal code as bearing on the question of first degree murder. The jury found relator guilty of murder in the first degree with penalty of life imprisonment. His motion for a new trial was overruled and he was sentenced to the Eastern State Penitentiary in accordance with the jury's verdict. No appeal was taken.
Twenty-one years later, in 1947, relator applied to the Board of Pardons for commutation of his sentence. His petition was based on the alleged impossibility of his having fired the fatal shot because, as he claimed, the bullet that killed McQueen was a special metal jacketed one, 1-9/16 inch in overall length, and therefore could not have been used in or fired from his revolver which could not chamber a cartridge more than 1-3/16 inch overall. The Board of Pardons instructed an Assistant District Attorney to investigate this contention and the question was referred by the District Attorney's office to a ballistic expert of the Philadelphia Police Department. There had not been any such expert in the department prior to 1930. The ballistic expert apparently
reported that the fatal bullet could not have been fired from relator's revolver. The Assistant District Attorney forwarded the report to the Board of Pardons, which thereupon granted commutation of relator's sentence and released him on life parole. Three years later, in 1950, he was convicted of the offense of assault and battery and sentenced to one year imprisonment in the county prison. After serving that sentence, he was re-committed, in 1951, to the Eastern State Penitentiary for life as parole violator, where he is now confined. He again made application to the Board of Pardons for re-parole, but his ...