Appeal from judgment of Court of Oyer and Terminer of Carbon County, June T., 1965, No. 28, in case of Commonwealth of Pennsylvania v. Edward Eugene Eckhart.
Thomas S. McCready, for appellant.
George T. McKinley, First Assistant District Attorney, with him Murray Mackson, Assistant District Attorney, and John Deutsch, District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell and Mr. Justice Jones dissent.
This is an appeal from a conviction of first degree murder. Briefly, the facts are as follows. Defendant and decedent, one Carol Juliano, had been living together in a meretricious relationship at her home. They quarrelled, he threw her down, and he left the house. When appellant returned the next evening, Carol was gone. On the following day, defendant sought to contact Carol. Told to call back later, he proceeded to get very drunk. When a meeting was finally arranged, appellant and Carol argued once more. Carol drove away with her sister and the sister's two children. Appellant, being driven by one Reiber, followed. Eventually Carol stopped and the car carrying appellant pulled alongside. Appellant attempted to get into Carol's car, but Carol got out the other side. Appellant followed her. He then threw a beer bottle at her. Although appellant's memory deserted him at this point, the testimony of Carol's sister was that appellant beat Carol over the head with a rock. Appellant then took Carol's car and drove off. Five days later, appellant surrendered at 1:00 a.m. on May 22, 1965. At 8:30 a.m., he was interrogated and confessed. After trial by jury, appellant was found guilty of murder in the first degree and sentenced to life imprisonment.
Appellant makes four assignments of error. We find no merit in three of these. One assignment of error was that the evidence could not support a verdict of murder in the first degree because there was no evidence that the killing was willful, deliberate and
premeditated. We disagree. Recently in Commonwealth v. Howard, 426 Pa. 305, 317, 231 A.2d 860 (1967), we repeated what we have often said: "'Indeed, the jury could have found a specific intent to kill and therefore first degree murder from "the offender's use of a deadly weapon, for while an intention to kill may be shown by the defendant's express words or declarations or other conduct, such intent may be just as effectively inferred from the deliberate use of a deadly weapon upon a vital part for a manifest purpose."' . . . The action of appellant supplies specific intent, willfulness, deliberation and premeditation essential for a determination of murder in the first degree." See also Commonwealth v. Ballem, 386 Pa. 20, 123 A.2d 728 (1956) and Commonwealth v. Samuel Jones, 355 Pa. 522, 50 A.2d 317 (1947), and cases cited therein. We have no doubt that use of a rock upon decedent's head constitutes use of a deadly weapon upon a vital part of the body.
Appellant also assigns as error the procedure for selecting a jury, specifically, originally calling a group of twelve. Although the procedure used may have been a bit confusing, it is difficult to see how appellant was prejudiced. Moreover, appellant's counsel made no objection to the procedure when it took place and thus waived any objection he might have had. Certainly the deviations from the norm did not rise so high as to constitute a deprivation of the essential right to trial by jury. The Constitution of the Commonwealth, Article I, § 6, guarantees that "Trial by jury shall be as heretofore, and the right thereof remain inviolate." However, "it is well settled that the word 'inviolate' as used in the constitutional provision quoted means freedom from substantial impairment. It does not import rigidity of regulation in the manner of impanelling a jury. The cardinal principle is
that the essential features of trial by jury as known at the common law shall be preserved. The fundamental law preserves the substance of the right; details of administration which leave the enjoyment of the right unaffected are of no constitutional concern." Commonwealth v. Fugmann, 330 Pa. 4, 28, 198 A. 99 (1938).
The third assignment of error was the alleged improper admission into evidence of appellant's statement. Appellant's objection to its admission was properly overruled by the court below as untimely. Rule 324(b) of the Pennsylvania Rules of Criminal Procedure provides: "Such application [to suppress a confession on the ground that defendant was denied his right to assistance of counsel at the time the confession was made] shall be made only after a case has been returned to court and not later than five days before the first day of the week in which the case is listed for trial. An application may be made thereafter only if opportunity therefor did not previously exist or the interests of justice require it. If timely application is not made hereunder, the issue of the denial of the defendant's right to assistance of counsel at the time the confession was made shall be deemed to be waived." Appellant's application, in chambers during trial, clearly came too late. He argues that the instant case is one in which "the interests of justice require" action on the late application. Appellant's argument seems to be that since he was denied the right to counsel, the interests of justice require that he be granted a hearing ...