Appeal from order of Court of Common Pleas No. 4 of Philadelphia County, June T., 1964, No. 6261, in case of Commonwealth ex rel. Frank J. Papy, Jr. v. James F. Maroney, Superintendent.
Frank J. Papy, Jr., appellant, in propria persona.
Armand Della Porta and Joseph M. Smith, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen.
On May 4, 1948, the appellant, Frank J. Papy, Jr., brutally assaulted one William McGee with a claw hammer and robbed him of his wallet and topcoat. Papy was arrested and indicted for aggravated assault and robbery. On July 14, 1948, while represented by counsel, he appeared in court and plead nolo contendere to the indictment. He was sentenced to a term of imprisonment from 7 1/2 to 15 years.
Following the assault, the victim McGee spent several months in two hospitals and finally died on November 25, 1948. An autopsy revealed that the blows on the head, inflicted by Papy, caused his death. Papy was then indicted for murder.
On February 8, 1949, Papy, again represented by counsel, appeared in court and plead guilty to the murder indictment. After a hearing before a three-judge court, he was adjudged guilty of murder in the first degree and sentenced to life imprisonment, under which judgment he has since been continuously confined.
On September 3, 1964, Papy, in propria persona, instituted habeas corpus proceedings, which the lower court dismissed after hearing. An appeal from this order is presently before us.
It is first urged that appellant was placed in double jeopardy for the same offense in violation of his constitutional rights. In effect, a plea of autrefois convict is being entered at this later date to the murder indictment.
The proscription against double jeopardy found in Article I, § 10 of the Constitution of Pennsylvania*fn1 applies only where a person is twice placed in jeopardy for a crime punishable by death: Commonwealth v. Baker, 413 Pa. 105, 196 A.2d 382 (1964); Commonwealth v. Simpson, supra note 1; Commonwealth ex rel. Berry v. Tees, 177 Pa. Superior Ct. 126, 110 A.2d 794 (1955); and, Commonwealth v. Comber, 170 Pa. Superior Ct. 466, 87 A.2d 90 (1952), rev'd on other grounds, 374 Pa. 570, 97 A.2d 343 (1953). See also, Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728 (1962). A plea of autrefois convict is separate and distinct from a plea of double jeopardy, although in practical effect it is the same. See, 10 P.L.E. Criminal Law § 111, and Notes, Some Aspects of the Double Jeopardy Problem in Pennsylvania, 19 U. Pitt. L. Rev. 630, 631 (1958). A plea of autrefois convict, however, ...