Commonwealth ex rel. Simcox v. Johnston

Opinion

Per Curiam,

This is the second appeal to this Court by relator from the dismissal of a petition for writ, of habeas corpus by the Court of Common Pleas of Erie County. On his previous appeal we sustained the order of the court below. Com. ex rel. Simcox v. Johnston, 180 Pa. Superior Ct. 193, 119 A. 2d 812.

Relator’s last petition contains the same averments as were set forth in his previous petition. With one exception they are merely variations of his previous allegations, which were found to be without merit. Relator now contends that he was denied due process of law because he was denied the right to be present and take part in the selection of the jury which tried him. This is contrary to- the trial record. See Com. ex rel. Chambers v. Claudy, 171 Pa. Superior Ct. 115, 117, 90 A. 2d 383. Moreover j relator admits-that- he-was in' the court room at the time the jury was selected. At his trial 'on- September 14, 1953, in the' Court .of Quarter'.'Sessions of Erie County relator was represented by.' counsel. He was present throughout his trial, and was' deprived of no constitutional right in the selection of jurors or otherwise. See Com. v. Bova, 180 Pa. Superior Ct. 359, 362, 119 A. 2d 866.

Regularity of proceedings before a magistrate or a grand jury cannot be questioned by writ of habeas corpus. Com. ex rel. Musser v. Day, 180 Pa. Superior Ct. 191, 119 A. 2d 811. Likewise, the consolidation for trial of indictments cannot be raised on habeas corpus. Com. ex rel. Haines v. Burke, 173 Pa. Superior Ct. 477, 481, 98 A. 2d 208. A writ of habeas corpus does not lie for the mere questioning of alleged errors during or prior to the trial. Com. ex rel. Townsend v. Burke, 361 Pa. 35, 41, 63 A. 2d 77; Com. ex rel. O’Halloran v. Burke, 176 Pa. Superior Ct. 477, 107 A. 2d 577.

This is relator’s third petition for writ of habeas corpus. In substance the same averments have been before the court below on three occasions, and before this Court for the second time. The petition was properly dismissed without a hearing as it raised no legally material issue requiring determination by the court. Com. ex rel. Collins v. Claudy, 170 Pa. Superior Ct. 199, 85 A. 2d 663; Com. ex rel. Wolcott v. Burke, 173 Pa. Superior Ct. 473, 476, 98 A. 2d 206; Com. ex rel. Luzzi v. Tees, 176 Pa. Superior Ct. 528, 108 A. 2d 921.

The order dismissing petition for writ of habeas corpus is affirmed.