Appeal, No. 123, Jan. T., 1957, from order of Court of Common Pleas of Franklin County, Oct. T., 1956, No. 264, in case of Commonwealth ex rel. William Kennedy v. Co. Edward D. Mingle, Deputy Superintendent, Eastern State Penitentiary. Order affirmed.
William Kennedy, appellant, in propria persona.
George C. Eppinger, District Attorney, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is an appeal from the order of the Court of Common Pleas of Franklin County dismissing a petition for a writ of habeas corpus.
The relator, charged with the killing of his wife, was convicted on April 30, 1954 of murder in the first degree and the jury fixed the penalty at life imprisonment.
He was duly sentenced on May 6, 1954. Somewhat over two years later, in July of 1956, while incarcerated in the Eastern State Penitentiary at Philadelphia, he mailed a petition for a writ of habeas corpus to the court below which was received on July 25, 1956. The President Judge, on July 30th, made an order directing the issuance of a rule to show cause upon the Warden of the Penitentiary, with notice to the District Attorney and Attorney General, and at the same time appointed counsel to represent the relator. Hearing was fixed for August 7th, the return day of the rule. At this hearing counsel for the relator and the District Attorney were present and argument was heard on the law as to the sufficiency of the allegations in relator's petition. No evidence was taken.
The pertinent allegations for the writ are the following: "4. That said sentence is illegal, in that it was procured under coercion, threat, and duress, while relator was under the influence of narcodicts (sic), and unable to comprehend what was taking place at the time of his trial. 5. That the Foreman on the Jury, one, Mrs. Pauline Shatzer, in the case of Commonwealth versus William Kennedy, was a relative of the deceased, and should not have been permitted to serve on the said Jury, the common law states that this is not permissible (sic) in a capitol (sic) case. 6. That the said Juror was closely related to the deceased. That the said juror was prejudiced and could not give a fair and impartial verdict.".
These allegations, as stated by the court below in its opinion dismissing the petition without prejudice, fail to aver the nature of the narcotic, when or by whom administered, whether relator was under the influence of the narcotic at the time of sentence or during his trial; nor, with regard to his ...