Appeal, No. 17, May T., 1958, from order of Court of Common Pleas of Dauphin County, March T., 1957, No. 642, in case of Commonwealth of Pennsylvania ex rel. Jesse Ashmon v. William Banmiller, Warden. Order affirmed.
Jesse Ashmon, appellant, in propria persona.
William H. Saye, Assistant District Attorney, and H. F. Dowling, District Attorney, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
The appellant, who is serving a life sentence in the Eastern State Penitentiary for murder, appeals from an order of the court below dismissing his petition for a writ of habeas corpus.
When, as defendant, the appellant was arraigned on the indictment charging him with murder, he entered a plea of guilty. But, at the hearing before the court for the taking of testimony in order to fix the degree of the crime and the penalty, he claimed that his fatal stabbing of the deceased was done in self defense and also contended that, even if adjudged guilty of a penal offense, his crime rose no higher than voluntary manslaughter. Upon his subsequent petition, the court permitted him to change his plea to not guilty. At the ensuing trial, the jury found him guilty of murder in the first degree and fixed the penalty at life imprisonment whereon judgment of sentence was duly entered.
In support of his petition for a writ of habeas corpus against the restraint thus imposed upon him, the relator alleges (1) that no member of the Negro race, to which he belongs, was selected for service on the jury which tried and convicted him, (2) that the trial judge erroneously allowed in evidence reference to his plea of guilty which he had formerly made but subsequently withdrew and (3) that the court, before imposing sentence, failed to inquire of him whether he had anything to say why sentence should not be pronounced.
In support of his first contention, the appellant avers that three members of his own race were called for jury service at his trial but were challenged by the Commonwealth and that, consequently, the jury which tried and convicted him was composed entirely of Caucasians. As pointed out by Judge ROYAL in the opinion for the court below, - "The fact that the Commonwealth saw fit, as it had a right to do, to exercise some of its peremptory challenges in excluding these jurors or for cause where just cause existed, did not constitute a denial of due process of law." What we said in Commonwealth v. Bentley, 287 Pa. 539, 545, 135 A. 310, is peculiarly apposite - "The defendant had the legal right to reject jurors called, but not to select those by whom he would be tried: Com. v. Morgan, 280 Pa. 67." The same concept is to be found in Commonwealth v. Antico et al., 146 Pa. Superior Ct. 293, 314, 22 A.2d 204, where it was said that the "defendants were entitled to a trial by a fair and impartial jury, but not to a trial by any particular juror or jurors." See, also, Commonwealth v. Schoenleber and Patterson, 96 Pa. Superior Ct. 76, 79.The alleged discrimination which the appellant labors to import to the jury selection did not exist in fact. Negroes are not excluded from jury service in Pennsylvania. The very
fact, as the learned court below observed, that three Negroes were called for jury service at the appellant's own trial is conclusive proof that members of his race were not ...