Appeal, No. 170, Jan. T., 1960, from order of Court of Common Pleas of Dauphin County, June T., 1959, No. 571, in case of Commonwealth of Pennsylvania ex rel. Charles Ellsworth Johnson v. David N. Myers, Superintendent. Order affirmed.*fn*
Charles Ellsworth Johnson, appellant, in propria persona.
John A. F. Hall, Assistant District Attorney, and Martin H. Lock, District Attorney, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BOK.
Relator, forty-seven years old, filed his petition for a writ of habeas corpus. The court below denied it and he has appealed.
He was tried on March 17, 1958, before a jury in Dauphin County on a charge of murder. Having been found guilty of that in the second degree, he was given a sentence of from ten to twenty years. The victim was his paramour, and he did her to death with his fists.
His reasons to support his petition for a writ are:
1. He was denied due process and equal protection of the laws because (a) He had no counsel at the preliminary hearing where he alleges his statements were taken, and (b) The indictment was not complete for it failed to state the scene of the crime and the specific time.
2. He had no jury trial within the spirit and meaning of Constitutional guarantees because of an alleged error in the Court's charge.
3. He was forced to testify against himself by the Commonwealth's reading into evidence his statements.
4. The evidence was insufficient to support the jury's verdict.
It will be seen at a glance that all of these reasons relate to trial errors and hence are matters that should have been raised then or on appeal, but they were not raised at either time. It requires only sample authority to show that habeas corpus cannot be used as a substitute for an appeal: Commonwealth ex rel. Kennedy v. Myers, 393 Pa. 535 (1958), 143 A.2d 660.
The only allegation of error that bears comment arises out of two paragraphs of the charge of the trial judge. The appellant mentions only the second, but the court below quotes both in its opinion. They follow: "It may be stated as a general rule that all homicide - now, homicide is the taking of human life by another
person - that all homicide is presumed to be malicious, that is, murder of some degree, until the contrary appears in evidence.
"While it is presumed to be murder, that presumption rises no higher than murder in the second degree. The burden is upon the Commonwealth to raise it to murder in the first degree; the burden is upon the defendant to lower it to voluntary manslaughter."
It is true that in Commonwealth v. Drum, 58 Pa. 9 (1868), Mr. Justice AGNEW, sitting as trial judge, charged the jury that "all homicide is presumed to be malicious... until the contrary appears in evidence." This doctrine has been modified, so that the presumption is now said to apply not to all homicide but only to "felonious homicide": Commonwealth v. Elliott, 292 Pa. 16 (1928) 140 A. 537; ...