The opinion of the court was delivered by: LORD, III
This is a habeas corpus proceeding. On July 13, 14 and 15, 1964, the Medical Examiner of Philadelphia conducted an inquest into two alleged murders. As a result of the inquest, relator was arrested. The District Attorney of Philadelphia County then presented witnesses to the grand jury on July 15. The grand jury returned two indictments against the relator charging him with the murders of Judith Lopinson and Joseph Malito. As a result of these indictments, relator is presently detained.
On July 15, 1964, the relator filed a petition for writ of habeas corpus in the Court of Common Pleas No. 2 of Philadelphia County as of June Term, 1964, No. 3162, alleging defects in the Medical Examiner's hearing, the failure of the Commonwealth to prove a prima facie case and the denial of a preliminary hearing. The only testimony presented at the hearing on the petition before that court on July 28, 1964, was evidence of the crime. The court dismissed the petition on July 28, 1964.
A petition and rule to show cause why the writ of habeas corpus should not be reinstated were filed on August 4, 1964. The Commonwealth's motion to vacate the rule to show cause was granted on August 11, 1964.
Relator took no appeal through the state courts from the denial of his petition for habeas corpus, and his time for appeal has expired. 12 P.S. § 1136.
Relator now raises several grounds in his petition to this court for a writ of habeas corpus.
Medical Examiner Hearing -- Preliminary Hearing
Relator did attack in his state petition the Medical Examiner's hearing and the failure to provide a preliminary hearing. We hold that the defects alleged in connection with the Medical Examiner's inquest and the failure to provide a preliminary hearing are not now properly raised in a petition for writ of habeas corpus to the federal courts.
As to a state prisoner in relator's situation, the function of the federal habeas corpus proceeding is to call into question the constitutionality of the relator's present custody. 28 U.S.C.A. § 2241.
In McNally v. Hill, 293 U.S. 131 at pp. 136-139, 55 S. Ct. 24, at pp. 26-28, 79 L. Ed. 239 (1934), the Court, speaking of the writ of habeas corpus, said,
'* * * The purpose of the proceeding defined by the statute was to inquire into the legality of the detention, and the only judicial relief authorized was the discharge of the prisoner or his admission to bail and that only if his detention were found to be unlawful. In this, the statute conformed to the traditional form of the writ, which put in issue only the disposition of the custody of the prisoner according to law. There is no warrant in either the statute or the writ for its use to invoke judicial determination of questions which could not affect the lawfulness of the custody and detention, and no suggestion of such a use has been found in the commentaries on the English common law.
'Wherever the issue has been presented, this Court has consistently refused to review, upon habeas corpus, questions which do not concern the lawfulness of the detention. * * *'
In Price v. Johnston, 144 F.2d 260, at page 261 (C.A. 9, 1944), the court said:
These cases, while not identical factually to the present case, are clear in the principle enunciated. For a short time relator was held pursuant to the order of the Medical Examiner. He is now, however, held as a result of the grand jury indictments (17 P.S. § 361) and ...