The relator was not subjected to double jeopardy which violated the standards of due process required under the United States Constitution nor which violated the Pennsylvania Constitution, and his release may not be granted on that ground.
Cruel and Unusual Punishment
Relator's contentions that the cruel and unusual punishment provisions of the United States Constitution have been violated in this case are also rejected.
The trial court used the following language in its opinion filed subsequent to its imposition of the death penalty:
'While we have carefully considered the facts in the record concerning the defendant's background and the testimony that he is an intellectual defective, it was our judgment, on careful balance, that this twenty-nine year old man who participated in the brutal crime must pay the supreme penalty, and that this case was an appropriate one for the death penalty, if any is.
'This court is of the unanimous opinion that the sentence imposed in this case was a proper one, necessary to protect the interests of society.'
Opinion of McClanaghan, J., dated August 28, 1961, Commonwealth v. Carl Melton, Court of Oyer & Terminer and Quarter Sessions of the Peace, Philadelphia County, December Sessions 1958, No. 921. See Document No. 10.
The sentence of death is not, per se, a cruel and unusual punishment violative of the Eighth or Fourteenth Amendments to the United States Constitution. State of La. ex rel. Francis v. Resweber, 329 U.S. 459, 463-464, 67 S. Ct. 374, 91 L. Ed. 422 (1947); Weems v. United States, 217 U.S. 349, 369-371, 30 S. Ct. 544, 54 L. Ed. 793 (1910); In re Kemmler, 136 U.S. 436, 447, 10 S. Ct. 930, 34 L. Ed. 519 (1890); Wilkerson v. Utah, 99 U.S. 130, 134-135, 25 L. Ed. 345 (1878).
[8,9] The Pennsylvania Supreme Court reviewed all the evidence in the case and decided that the lower court was justified in finding that this defendant committed murder in the first degree and that the lower court did not abuse its discretion in imposing the death penalty.
It is not the function of this court to substitute its personal views for that of the state court, but only to decide if a Federal constitutional provision has been violated.
No such violation is found here. It is clear from the opinion of March 13, 1962 (406 Pa. 343, 178 A.2d 728), that the appellate court reviewed thoroughly all the evidence in the case before making its decision. It is noted that in this case the attorney for the relator expressly stated that he was not attempting to prove that his client was insane, but that he was only presenting the evidence as to his client's mental state in mitigation of punishment.
In Commonwealth v. Elliott, 371 Pa. 70, at p. 75, 89 A.2d 782, at p. 785 (1952), the Supreme Court of Pennsylvania has stated:
'Mental deficiency is a fact which always should be and in this case was taken into consideration in determining and fixing the penalty or sentence. However, no case in Pennsylvania has ever decided that a trial Judge or a Supreme Court must, as a matter of law, reduce a sentence from death to life imprisonment because the defendant is an unstable, weak moron or a mental defective.'
See, also, Commonwealth v. Smith, 405 Pa. 456, 459-460, 176 A.2d 619 (1962); Commonwealth ex rel. Simon v. Maroney, 405 Pa. 562, 567, 176 A.2d 94 (1961); Commonwealth v. Graves, supra.
The punishment imposed in this case is not out of all proportion to the offense disclosed by the record
(participation in a robbery during which there were brutal and inhumane beatings of a man (by the defendant and a co-defendant) and his wife (by the co-defendant), resulting in the death of the wife). Cf. Robinson v. California, 370 U.S. 660, 675-676, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962); Weems v. United States, supra, 217 U.S. at pp. 368 and 371, 30 S. Ct. at pp. 549 and 551. This punishment is not beyond the 'extent' and 'mode permitted by the common law for offenses of a similar nature.' See quotation from Cooley's 'Constitutional Limitations' in Weems v. United States, supra, 217 U.S. at p. 375, 30 S. Ct. at 552.
The petition for writ of habeas corpus must be denied.