Com. ex rel. Bolish v. Banmiller

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtBefore CHARLES ALVIN JONES; BOK; MUSMANNO
Citation151 A.2d 480,396 Pa. 129
PartiesCOMMONWEALTH of Pennsylvania ex rel. Daniel BOLISH, Appellant, v. William J. BANMILLER, Warden Eastern State Penitentiary.
Decision Date28 May 1959

Page 480

151 A.2d 480
396 Pa. 129
COMMONWEALTH of Pennsylvania ex rel. Daniel BOLISH, Appellant,
v.
William J. BANMILLER, Warden Eastern State Penitentiary.
Supreme Court of Pennsylvania.
May 28, 1959.

[396 Pa. 130] Daniel Bolish, in pro. per.

Carlon M. O'Malley, Dist. Atty., Ralph P. Needle, Asst. Dist. Atty., Scranton, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK and McBRIDE, JJ.

BOK, Justice.

This is the third appearance of this case. Relator originally was found guilty of first degree murder and given death. We reversed for trial errors. Commonwealth

Page 481

v. Bolish, 1955, 381 Pa. 500, 113 A.2d 464. The second trial resulted in a verdict of first degree murder and a penalty of life imprisonment. This was appealed and affirmed. Commonwealth v. Bolish, 1958, 391 Pa. 550, 138 A.2d 447. Relator now appeals from the denial by the court below of his petition for a writ of habeas corpus. He was represented at trial and on both appeals by able and experienced counsel.

We could affirm out of hand on the ground, immemorially taken, that habeas corpus is not a substitute for an appeal, a writ of error, a motion for a new trial, or the correction of trial errors. Commonwealth ex rel. Kennedy v. Myers, 1958, 393 Pa. 535, 143 A.2d 660 and cases cited. However, a few observations may be in order.

[396 Pa. 131] Appellant complains that his petition for the writ was denied without a hearing after a rule to show cause had issued and an answer had been filed by the Commonwealth. This is proper when the allegations of the petition are refuted by the trial or court record, which may not be impeached in a collateral proceeding until the contrary competently and affirmatively appears. Commonwealth ex rel. Spenser v. Ashe, 1950, 364 Pa. 442, 71 A.2d 799; Commonwealth ex rel. Kaylor v. Ashe, 1950, 167 Pa.Super. 263, 74 A.2d 769. Where the petition fails to make out a case or where there are no issues of fact, a hearing is unnecessary. Commonwealth ex rel. Elliott v. Baldi, 1953, 373 Pa. 489, 96 A.2d 122; Commonwealth ex rel. Bishop v. Claudy, 1953, 373 Pa. 523, 97 A.2d 54; Commonwealth ex rel. Harris v. Banmiller, 1958, 391 Pa. 132, 137 A.2d 452. The case at bar falls within these rules.

Relator's central argument is that the felony-murder doctrine could not legally be applied to him because he was not tried on the arson indictment and because the victim, Flynn, died accidentally. What relator asks s, in effect, a reargument of the appeal from his second conviction and our adoption of the two dissenting opinions at Com. v. Bolish, 391 Pa. 550, 138 A.2d 447, as the majority view of the Court. We are unwilling to do this because the majority opinion of Mr. Justice Arnold there and of the Chief Justice in Commonwealth v. Redline, 1958, 391 Pa. 486, 137 A.2d 472 represent the law of the case and the present law of the Commonwealth. And the record shows not only that the trial judge charged fully and unobjectionably on common law arson as the basis of felony murder but that at trial after relator's counsel had objected successfully to a consolidation of the arson and murder bills, no objection was made to proceeding on the murder bill instead of the arson [396 Pa. 132] bill. Consolidation or separation of indictments is a matter for the trial judge, whose conclusion will be reversed only for obvious abuse of discretion or prejudice to the defendant. Commonwealth v. Kloiber, 1954, 378 Pa. 412, 106 A.2d 820; Commonwealth v. Patrick, 1953, 174 Pa.Super. 593, 101 A.2d 139. No question of discretion or prejudice was raised on the main appeal or at any time until now.

Further, the circumstantial evidence indicating Flynn's presence in the house and his death as a result of arson is outlined in Justice Arnold's opinion.

While there was no direct evidence of appellant's presence in the house at the time of the fire, there is ample circumstantial evidence to indicate his presence and participation in the act of arson. On the day before, he bought a gallon of kerosene and took it away in a jug that had a greasy bottom. Six hours later, at 8:30 p. m., he borrowed Maddon's car. He and Flynn were seen together in a restaurant and in the street as late as ten minutes past mid-night. The fire and explosion occurred at 1:15 a. m., and immediately afterwards a car, later identified as Maddon's, was seen driving rapidly away from the scene. At 2:45 a. m. relator returned the car keys to Maddon. The car had a greasy ring on its floor mat the size of the gallon jug and a blanket found in the car contained kerosene

Page 482

which was shown by analysis to have come from the supply of kerosene that relator had bought. Relator told Maddon to tell no one that he had borrowed the car, and he himself twice denied that he had borrowed it. When he returned the keys he told Maddon that Flynn had borrowed one of Maddon's shirts and that it was in the car. The shirt was found along the bloody trail left by Flynn after the fire. Maddon later told relator that he had found the shirt and testified that relator told him to get rid of it. Maddon then showed relator[396 Pa. 133] a key that he had found in the pocket of the shirt, and relator asked for it and took it. It was later found in the sewer at the corner where he had left Maddon, and it proved to be a twin key to the burned house. The house showed evidence of kerosene after the fire and of an explosion caused by the ignition of it by a 'hot plate'; no such plate was owned or had been left in the house by the family, who were absent at the time of the fire. The electricity was turned on.

The record amply supports the quality of this evidence as reasonably...

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37 practice notes
  • Com. ex rel. Lockhart v. Myers
    • United States
    • Superior Court of Pennsylvania
    • November 16, 1960
    ...will be reversed on appeal only for obvious abuse of discretion or prejudice to the defendant. Commonwealth ex rel. Bolish v. Banmiller, 396 Pa. 129, 151 A.2d 480. See also Commonwealth v. Kloiber, 174 Pa.Super. 483, 101 A.2d 444; Commonwealth v. Patrick, 174 Pa.Super. 593, 101 A.2d 139; Co......
  • Com. v. Moore
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 3, 1975
    ...were thereby prejudiced. Commonwealth v. Patrick, 416 Pa. 437, 445, 206 A.2d 295 (1965); Commonwealth ex. rel. Bolish v. Bammiler, 396 Pa. 129, 132, 151 A.2d 480 (1959); Commonwealth ex rel. Spencer v. Ashe, 364 Pa. 442, 446, 71 A.2d 799 (1950), cert. denied, 339 U.S. 990, 70 S.Ct. 1015, 94......
  • Com. v. Webster, Nos. 2638
    • United States
    • Superior Court of Pennsylvania
    • February 13, 1984
    ...344 A.2d 850, 852 (1975); Commonwealth v. Patrick, 416 Pa. 437, 445, 206 A.2d 295, 298 (1965); Commonwealth ex rel. Bolish v. Banmiller, 396 Pa. 129, 132, 151 A.2d 480, 481 (1959); Commonwealth ex rel. Spencer v. Ashe, 364 Pa. 442, 446, 71 A.2d 799, 801, cert. denied, 339 U.S. 990, 70 S.Ct.......
  • Commonwealth v. Webster, 2638 1981
    • United States
    • Superior Court of Pennsylvania
    • December 9, 1983
    ...344 A.2d 850, 852 (1975); Commonwealth v. Patrick, 416 Pa. 437, 445, 206 A.2d 295, 298 (1965); Commonwealth ex rel. Bolish v. Banmiller, 396 Pa. 129, 132, 151 A.2d 480, 481 (1959); Commonwealth ex rel. Spencer v. Ashe, 364 Pa. 442, 446, 71 A.2d 799, 801, cert. denied, 339 U.S. 990, 70 S.Ct.......
  • Request a trial to view additional results
37 cases
  • Com. ex rel. Lockhart v. Myers
    • United States
    • Superior Court of Pennsylvania
    • November 16, 1960
    ...will be reversed on appeal only for obvious abuse of discretion or prejudice to the defendant. Commonwealth ex rel. Bolish v. Banmiller, 396 Pa. 129, 151 A.2d 480. See also Commonwealth v. Kloiber, 174 Pa.Super. 483, 101 A.2d 444; Commonwealth v. Patrick, 174 Pa.Super. 593, 101 A.2d 139; Co......
  • Com. v. Moore
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 3, 1975
    ...were thereby prejudiced. Commonwealth v. Patrick, 416 Pa. 437, 445, 206 A.2d 295 (1965); Commonwealth ex. rel. Bolish v. Bammiler, 396 Pa. 129, 132, 151 A.2d 480 (1959); Commonwealth ex rel. Spencer v. Ashe, 364 Pa. 442, 446, 71 A.2d 799 (1950), cert. denied, 339 U.S. 990, 70 S.Ct. 1015, 94......
  • Com. v. Webster, Nos. 2638
    • United States
    • Superior Court of Pennsylvania
    • February 13, 1984
    ...344 A.2d 850, 852 (1975); Commonwealth v. Patrick, 416 Pa. 437, 445, 206 A.2d 295, 298 (1965); Commonwealth ex rel. Bolish v. Banmiller, 396 Pa. 129, 132, 151 A.2d 480, 481 (1959); Commonwealth ex rel. Spencer v. Ashe, 364 Pa. 442, 446, 71 A.2d 799, 801, cert. denied, 339 U.S. 990, 70 S.Ct.......
  • Commonwealth v. Webster, 2638 1981
    • United States
    • Superior Court of Pennsylvania
    • December 9, 1983
    ...344 A.2d 850, 852 (1975); Commonwealth v. Patrick, 416 Pa. 437, 445, 206 A.2d 295, 298 (1965); Commonwealth ex rel. Bolish v. Banmiller, 396 Pa. 129, 132, 151 A.2d 480, 481 (1959); Commonwealth ex rel. Spencer v. Ashe, 364 Pa. 442, 446, 71 A.2d 799, 801, cert. denied, 339 U.S. 990, 70 S.Ct.......
  • Request a trial to view additional results

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