
    Commonwealth v. Parmer, Appellant.
    Argued November 17, 1949.
    Before Maxey, C. J., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
    
      January 3, 1950:
    
      Albert S. Oliensis} with him A.. Allan Goodman, for appellant.
    
      Raymond A. Syeiser,- Assistant District Attorney, with him John II. Maurer, District Attorney, for appellee.
   Opinion by

Mb. Justice Linn,

The appellant was convicted of murder in the second degree and sentenced to imprisonment for a term of not less than seven years and two months and nor. more than.fourteen years and four months. ITe received a fair trial which was reviewed by a court in banc composed of three judges who refused his motion for a new trial. He now presents but two contentions: first, that he is entitled to a new trial on the ground that he should not have been “convicted of a higher crime than his principal” who had been convicted of voluntary manslaughter : his second contention is that the trial judge erred in allowing the jury to have a copy of the indictment instead of the original which had written on it that the principal in the first degree was convicted of voluntary manslaughter.

A principal in the first degree is one who commits the crime: 4 Bl. Comm. *34; 1 East P. C. 228; 1 Hale P. C. *615; Clark and Marshall on Crimes, 4th ed., section 159. A principal in the second degree is one who is present when a felony is committed by another, and who aids or abets in its commission: 4 Bl. Comm. *34; 1 Hale P. C. *438, *615; 2 Hawkins P. C., chapter 29, section 7; Banson v. Offley, 3 Mod. 121, 87 Eng. Rep. 78; Clark and Marshall on Crimes, section 163. Also see Perkins, Parties to Crime, 89 U. of P. Law Rev. 581 (1941).

The appellant, Parmer, and Robert J. McGrogan, were fellow prisoners in the penitentiary on June 1, 1948, when they killed Richard Rafter, Jr., another prisoner. President Judge Oliver, in the opinion written for the court in banc, refusing appellant’s motion for a new trial, described the murder as follows: “In the morning of that day, defendant and McGrogan were seated on the steps in the exercise yard. Defendant had a small knife with a sharp, well-pointed blade about 2y2" long, concealed in his pocket. McGrogan had a knife with a 6" blade and also a small knife similar to the one belonging to defendant. They had been seated for some minutes when Rafter entered the yard. Either as he approached, or as he was passing the steps, McGrogan and defendant jumped up and attacked him. Rafter did not have any knife or other weapon in his possession. McGrogan struck Rafter and also stabbed him twice in the chest with his knife, leaving one wound 4 to 5" deep and another 6" deep, the latter wound, causing a fatal hemorrhage. McGrogan backed Rafter against the wall while the knife was still sticking in his chest and pummelled him with blows upon the face and head. Meanwhile, defendant was yelling to McGrogan such phrases as ‘get him, get him,’ and ‘Go get him, keep after him.’ Defendant was also skirting around the two struggling men getting in such blows upon Rafter as he could. He had a small knife in his hand and in his own words, ‘kept swinging up and down from the shoulder to the leg.’ After the fight was over, defendant’s knife was covered Avith blood and there Avas blood on his hands Aidiich he acknoAvledged came from Rafter.”

There Avas evidence of a feud betAveen the tAvo men and their victim. The appellant and McGrogan Avere indicted together for murder but, on appellant’s application, he Avas tried separately. McGrogan, avIxo Avas tried first, Avas called as a Avitness by the appellant and referring to the crime testified that he “received six to tAvelve years for it. I must have done it . . .”

The Penal Code, June 24, 1939, P. L. 872, 1028, section 1105, as amended May 21, 1943, P. L. 306, 309, 38 PS 5105, now provides: “Principals in the Second Degree and Accessories, Aiders and Abettors. — Every principal in the second degree or accessory before the fact, to any felony at the common laAV or under any act of Assembly may be indicted, tried, convicted, and if no punishment is provided, may be punished in all respects as if he Avere the principal felon . . In Com. v. Mendola, 294 Pa. 353, 357-8, 144 A. 292 (1928) Ave considered the earlier provision of the Act of 1860, P. L. 382, carried into the Code of 1939. Walling, J., said, “A defendant may be both an accessory before the fact and also a principal (Bishop’s New Criminal Law, vol. 1, section 664), and the indictment under the statute above quoted, is the same Avhether he is one or the other or both. The statute enables the CommonAvealth to disregard the distinction betAveen a principal and an accessory before the fact . . Appellant can take no advantage of the fact that McGrogan Avas convicted only of voluntary manslaughter.

Appellant’s second contention is likeAvise Avithout merit. The indictment Avould doubtless have gone out Avith the jury if it had not had endorsed on it that McGrogan Avas convicted of voluntary manslaughter. In order to keep that irrelevant fact from the jury, the trial judge Avisely exercised his discretion by alloAving a copy of the indictment instead of the original, to go out. Appellant was not harmed by that: compare Com. v. Reinschreiber, 276 Pa. 262, 120 A. 135 (1923). Moreover, McGrogan, called by the appellant, had testified that he had been convicted and had been sentenced to a term from six to twelve years.

The judgment is affirmed.  