The opinion of the court was delivered by: HIGGINBOTHAM
As the United States Supreme Court has stated: "It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made." Cole v. State of Arkansas, 333 U.S. 196, at 201, 68 S. Ct. 514 at 517, 92 L. Ed. 644 (1948). But this is not our case, and, after a complete review of the state court records, I cannot agree with relator's claim that he was convicted by the appellate courts of Pennsylvania of a charge on which he was never tried. For reasons to be elaborated I shall deny his petition for writ of habeas corpus.
Short history of the case
This case, as tragic as it was inappropriate to the Christmas season of 1963 when it arose, has had a full existence in the Courts of the Commonwealth of Pennsylvania. Between December 23 and December 30, 1963, thirty-one persons died in skid-row Philadelphia as a result of methanol, or wood alcohol poisoning. In many of the cases the methanol was found to have come from the jelly-like product, industrial Sterno which was 54% methanol.
Relator Max Feinberg owned and operated a cigar store in the area of the tragedy. There among other items he sold tobacco, candy, and industrial Sterno. As the single retailer of the Sterno in question relator was arrested and indicted on thirty-one counts charging involuntary manslaughter and on companion bills charging violations of the Pharmacy Act 63 P.S. § 390-1 et seq.
After a three day trial from April 19 to 21, 1965, Judge Charles L. Guerin, sitting without a jury, found relator "guilty of involuntary manslaughter on seventeen bills of indictment and guilty of violating the Pharmacy Act on twenty-five bills of indictment." (from the "Adjudication" and "Supplemental Adjudication" by Judge Guerin). On January 9, 1967 relator was sentenced to not less than one nor more than three years on each of bills number 1934, 1940, 1942, 1946 and 1949, March Sessions, 1964, the sentences to be served consecutively. At sentencing, Judge Guerin stated: "Upon all other Bills, those charging involuntary manslaughter and those charging violation of the Pharmacy Act, sentence is suspended." (Sentencing Notes of Testimony, p. 8.)
The Pennsylvania Supreme Court unanimously affirmed the Superior Court, concluding that "Judge Guerin did, in fact, consider the issue of involuntary manslaughter and did find appellant guilty of involuntary manslaughter." Commonwealth v. Feinberg, 433 Pa. 558, at 573, 253 A. 2d 636 at 644 (1969).
Thereafter, relator filed the instant petition for writ of habeas corpus. Argument was held on January 19 of this year, and all briefing was concluded by April 1, 1970 (see docket entry No. 5). Although I ordered the complete state court record on December 3, 1969, it became available only during the second week of this month. I must now detail why, after a complete review of that record, I find myself in agreement with the thirteen Pennsylvania appellate Judges who have voted to affirm relator's convictions on bills Nos. 1934, 1940, 1942 and 1949.
What the state court record reveals
Relator's major argument is that he was convicted of a charge on which he was never tried. He reiterates time and again that he was tried only for misdemeanor-manslaughter. What does the record show?
First of all, each of the four bills of indictment here in question contains the following inscription:
"Charge: Involuntary Manslaughter" "* * * Max Feinberg did unlawfully kill and slay one -- contrary to the form of the Act of the General Assembly in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania."
While relator claims that "it was clear to everyone that [he] was only being tried for misdemeanor-manslaughter," he does admit that "the indictments can be read to charge ...