The opinion
Concueeing Opinion by
Me. Justice Bell:
I concur in the result but disagree with much of the dicta and the law asserted in the majority opinion, and believe some points raised by relator are so important as to require a more specific refutation.
Johnson, the relator, appeals from an Order of the lower Court dismissing his petition for a habeas corpus. Relator was tried and convicted by a jury in Dauphin County on March 21, 1958, of murder in the second degree and was sentenced to a term of not less than ten nor more than twenty years.
Evelyn Costea was killed by defendant on July 15, 1957. The murder was a brutal one. Relator-defendant in his confessions, only part of which he attempted to repudiate at the trial, admitted that he had struck the deceased with his fists many times and that when she tried to run from him he knocked her onto the floor and continued to hit her while she lay there. She died shortly thereafter from a hemorrhage of the brain or acute subdural hematoma.
Relator contends that the writ of habeas corpus should be granted because he was denied due process and equal protection of the law for the following reasons :
(a) He had no counsel at a preliminary hearing where he alleges his confessions were taken. However, relator was represented from August 23, 1957, as well *458 as throughout Ms trial by counsel of his own choice. Due process does not require a State to provide a defendant with counsel while he is being interrogated by police officers or at a preliminary hearing, and a conviction based upon a confession made while in custody will be sustained unless methods were employed which amounted to a denial of a fair trial or of any of his Constitutional rights: Commonwealth v. Agoston, 364 Pa. 464, 481 , 72 A. 2d 575 ; Lyons v. Oklahoma, 322 U. S. 596 ; Stein v. New York, 346 U. S. 156, 187, 188 ; Stroble v. California, 343 U. S. 181, 197 ; Lisenba v. California, 314 U. S. 219 ; Brown v. Allen, 344 U. S. 443, 476 .
Relator admits in his petition that before he made any statements or confessions he was advised that he did not need to make any statement and that he had a right to counsel. Nevertheless, he freely made the confessions and asked for no attorney. We find no merit in relator’s contention.
(b) Relator next contends that the indictment was defective because it failed to state with particulai’ity the scene of the crime and the specific time. The indictment clearly set forth that the crime was committed in Dauphin County on or about July 15, 1957, and this is sufficiently definite. Moreover, so far as formal defects are concerned, it is too late after entry of plea or trial to question in a habeas corpus proceeding the validity of an indictment: Commonwealth ex rel. Jenkins v. Ashe, 341 Pa. 334 , 19 A. 2d 472 ; Commonwealth ex rel. Haines v. Banmiller, 398 Pa. 7 , 157 A. 2d 167 ; Halderman’s Petition, 276 Pa. 1 , 119 A. 735 ; Commonwealth ex rel. Shultz v. Myers, 182 Pa. Superior Ct. 431 , 128 A. 2d 103 ; Act of March 31, 1860, P. L. 427, §11, 19 PS §431. *
*459 (c) Eelator contends he was denied due process because of an error in the court’s charge on murder. A jury can find an accused guilty of mui'der in the second degree if death was caused by a beating from fists: Commonwealth v. Dorazio, 365 Pa. 291 , 74 A. 2d 125 . Furthermore, on the question of reversible error, a Court’s charge to the jury must be considered, not on the basis of isolated excerpts but as a whole and in the light of the evidence in the case, and so considered, it is clear that this charge was free from any prejudicial reversible error: Commonwealth v. Clanton, 395 Pa. 521 , 151 A. 2d 88 ; Commonwealth v. Richardson, 392 Pa. 528 , 140 A. 2d 828 ; Commonwealth v. Kloiber, 378 Pa. 412 , 106 A. 2d 820 ; Commonwealth v. Donough, 377 Pa. 46 , 103 A. 2d 694 ; Commonwealth v. Patskin, 372 Pa. 402 , 93 A. 2d 704 .
(d) Eelator further contends that the evidence was insufficient to support the jury’s verdict. This contention is completely devoid of merit. In addition to relator-defendant’s confessions and his admissions at trial, there was ample additional evidence from which the jury could have found him guilty of this murder. Moreover, "A writ of habeas corpus is not a substitute for an appeal or a writ of error or for a motion for a new trial; nor is it available for the correction of trial errors: Commonwealth ex rel. Kennedy v. Mingle, 388 Pa. 54 , 130 A. 2d 161 ; Commonwealth ex rel. Matthews v. Day, 381 Pa. 617 , 114 A. 2d 122 ; Commonwealth ex rel. Marelia v. Burke, 366 Pa. 124, 126 , 75 A. 2d 593 ; . . . [and] 'the question of the sufficiency or insufficiency of the evidence to sustain a conviction cannot be raised by habeas corpus: [citing numerous cases]:’ ” Commonwealth ex rel. Wilson v. Banmiller, 393 Pa. *460 530, 532 , 143 A. 2d 657 . See also: Commonwealth ex rel. Ashmon v. Banmiller, 391 Pa. 141 , 137 A. 2d 236 ; Commonwealth ex rel. Milewski v. Ashe, 362 Pa. 48 , 66 A. 2d 281 , and cases cited therein.
“However, the aforesaid principles which had been considered well settled are now subject to this qualification : Habeas corpus will be granted if the defendant was for any reason deprived of due process [or of any other constitutional right] : Brown v. Allen, 344 U. S. 443 ; * Lisenba v. California, 314 U. S. 219 ; Commonwealth ex rel. Sleighter v. Banmiller, 392 Pa. 133 , 139 A. 2d 918”: Commonwealth ex rel. Wilson v. Banmiller, 393 Pa. 530 , 143 A. 2d 657 (pages 532-533). Accord Commonwealth ex rel. Milewski v. Ashe, 362 Pa. 48 , 66 A. 2d 281 , and cases cited therein.
Due process includes the fundamentals of a fair trial. In Lisenba v. California, supra, the Court said (page 236) : “As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.” The Court then gave sev *461 eral examples of what would amount to a denial of due process.
If the majority opinion contains a correct statement of the law, then in my judgment the charge of the trial Judge constituted fundamental reversible error and was so relevantly important on the question of innocence or guilt of the defendant as to amount to a denial of due process and consequently a writ of habeas corpus should be granted.
I likewise disagree with the totally unnecessary dicta in the majority opinion holding that malice can never be presumed even though the acts were felonious or undoubtedly and obviously dangerous to life, as for example, wilfully, deliberately and intentionally shooting at A in a barroom and killing B. The authorities which hold that malice, i.e., legal malice, has been presumed from such facts or circumstances are legion and run from hoary antiquity through Coke and Blackstone to Commonwealth v. Wucherer, 351 Pa. 305 , 41 A. 2d 574 ; Commonwealth v. Malone, 354 Pa. 180 , 47 A. 2d 445 ; Commonwealth v. Gibbs, 386 Pa. 182 , 76 A. 2d 608 ; Commonwealth v. Bolish, 381 Pa. 500, 510-511 , 113 A. 2d 464 . 4 Blackstone, Commentaries 192-193; 40 C.J.S., §13, p. 857, §20, p. 866, §21, p. 868; Wharton, Homicide §2, p. 2, §92, p. 112 (3rd ed. 1907); Maurer, Pennsylvania Criminal Law: Murder §3582, p. 915 et seq., §3689, p. 953 et seq.; I Warren, Homicide §74 (Perm. ed. 1938); Clark & Marshall, Crimes §10.06, p. 572 ff. (6th ed. 1958).
Legal malice is a presumption or an inference of fact — the words are sometimes used interchangeably— which arises from a set or chain of circumstances since, we repeat, the time of Coke and Blackstone. Furthermore, when the Commonwealth has made out a prima facie case of willful, deliberate and premeditated killing the burden is upon defendant to reduce such a killing to murder in the second degree or volun *462 tary manslaughter: Commonwealth v. Romanic, 311 Pa. 415, 421 , 166 A. 902 ; Commonwealth v. Mika, 171 Pa. 273 , 33 A. 65 ; Commonwealth v. Reed, 234 Pa. 573 , 83 A. 601 ; Commonwealth v. Drum, 58 Pa. 9 ; Commonwealth v. Carroll, 326 Pa. 135 , 191 A. 610 .
I agree with the majority’s conclusion that the relator’s contentions are devoid of merit and he was not deprived of due process or of any other Constitutional right.
We need not decide wlietlier there are any exceptions to this rule, because if any exist they would be inapplicable here. Of. *459 Commonwealth ex rel. Mayernick v. Ashe, 139 Pa. Superior Ct. 421 , 12 A. 2d 452 ; Commonwealth ex rel. Ritchey v. McHugh, 189 Pa. Superior Ct. 515 , 151 A. 2d 659 .
“Justice Jackson, in a concurring opinion, said: ‘It cannot be denied that the trend of our decisions is to abandon rules of pleading or procedure which would protect the writ against abuse. Once upon a time the writ could not be substituted for appeal or other reviewing process but chaUenged only the legal competence or jurisdiction of the committing court. We have so departed from this principle that the profession now believes that the issues we actually consider on a federal prisoner’s habeas corpus are substantially the same as would be considered on appeal. ... It really has become necessary to plead nothing more than that the prisoner is in jail, wants to get out, and thinks it is illegal to hold him. If he fails, he may make the same plea over and over again.’ See also: Recommendations of Conference of Chief Justices, 1952, 25 State Government #,11, page 249.”