McLaughlin, Aldisert and Gibbons, Circuit Judges.
Appellant, a habeas corpus petitioner, appeals from the district court's refusal to issue the writ. At the time of the district court's ruling he was confined by the Commonwealth of Pennsylvania on sentences imposed on four convictions for involuntary manslaughter. He has now been paroled, but although custody has terminated we have jurisdiction to consider the appeal. Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968); Lyons v. Brierley, 435 F.2d 1214 (3d Cir. 1970); United States ex rel. Di Rienzo v. New Jersey, 423 F.2d 224 (3d Cir. 1970). The district court, after examining the state court record, declined to issue the writ, without an evidentiary hearing.
Between December 23 and December 30, 1963 thirty-one persons living in skid-row Philadelphia died as a result of methanol, or wood alcohol poisoning. In a number of these cases the methanol was found to have come from industrial Sterno. Appellant owned and operated a tobacco shop in the skid-row area where, among other things, he sold industrial Sterno to local alcoholics for use as a beverage. Prior to 1963 the Sterno which he sold contained only 3.75% methanol. In this quantity methanol, though poisonous, was discharged from the body without causing serious harm so long as it was ingested with a larger quantity of ethyl alcohol. In 1963 the manufacturer began making a new variety of industrial Sterno containing 54% methanol. In this concentration methanol is a deadly poison. The manufacturer packaged cans of the new product with a label on the lid marked "Industrial Sterno. Danger. Poison. Not for home use. For commercial and industrial use only," and a skull and cross bones was depicted on the cans. On December 21, 1963, appellant bought from a wholesaler ten cases of the new product containing seventy-two cans each. On December 28, 1963, after hearing of a number of deaths from methyl alcohol poisoning he returned to the wholesaler four cases and forty-two cans which remained unsold. Appellant sold, or caused his employee to sell the other three hundred ninety cans.
Appellant was indicted on thirty-one bills charging involuntary manslaughter, 18 P.S. § 4703, and on thirty-one separate bills charging a violation of the Pennsylvania Pharmacy Act, Act of September 27, 1961, P.L. 1700, § 1; 63 P.S. 390-1 et seq. He was tried on all charges in April, 1965 before a judge of the Court of Quarter Sessions of Philadelphia sitting without a jury. At the conclusion of the trial he was adjudged guilty on seventeen bills of involuntary manslaughter, and on twenty-five bills charging violation of the Pharmacy Act. Sentence was imposed on five of the involuntary manslaughter counts, and was suspended on each of the other convictions. He appealed his conviction on the five counts on which he was sentenced, to the Superior Court of Pennsylvania, which affirmed on four bills and reversed on one. Commonwealth v. Feinberg, 211 Pa.Super. 100, 234 A.2d 913 (1967). He appealed that decision to the Supreme Court of Pennsylvania, which affirmed. Commonwealth v. Feinberg, 433 Pa. 558, 253 A.2d 636 (1969). Appellant then filed the petition which is now before us. Appellant contends:
(1) That the appellate courts of Pennsylvania affirmed his conviction upon a charge which was not tried in the lower court. See Cole v. Arkansas, 333 U.S. 196, 68 S. Ct. 514, 92 L. Ed. 644 (1948);
(2) that there is no evidence in the state trial record which supports his conviction for involuntary manslaughter. See Thompson v. Louisville, 362 U.S. 199, 80 S. Ct. 624, 4 L. Ed. 2d 654 (1960);
(3) that Pennsylvania could not constitutionally make criminal the conduct disclosed in the state trial record. See Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962);
(4) that by departing in his case from rules of law previously announced the Pennsylvania courts deprived him of the equal protection of the laws.
Our examination of the state court record discloses that each of these contentions is without merit, and that the writ of habeas corpus was properly denied.
Appellant's first contention arises out of the circumstance that for each death he was charged both with involuntary manslaughter and with a violation of the Pharmacy Act, and that all charges were tried together. He contended in the state courts, and contends here, that he was tried for unintentional killing by doing an unlawful act, the sale of Sterno in violation of the Pharmacy Act. The Court of Quarter Sessions did find him guilty of a violation of the Pharmacy Act with respect to each of the deaths for which sentence was imposed. These convictions were, however, on separate bills charging such violations. The adjudication opinion which was filed by the trial court pursuant to Rule 46 of the Superior Court Rules treats of both the involuntary manslaughter and the Pharmacy Act charges. On appeal to the Pennsylvania Superior Court appellant contended that he could not properly be convicted of involuntary manslaughter by virtue of a violation of the Pharmacy Act because that Act did not apply to him. The Superior Court agreed, but held that he had in fact been tried and convicted for negligent involuntary manslaughter as well as misdemeanor -- manslaughter. One judge dissented from that interpretation of the adjudication opinion. 234 A.2d at 920. The Pennsylvania Supreme Court carefully reviewed that opinion and concluded that the trial court did consider the issue of negligent manslaughter and did find appellant guilty of that charge.
The involuntary manslaughter bills are general in terms. Each charges that:
"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 ...