DocketNumber: 5, Misc. Docket, 276
Citation Numbers: 36 A.2d 175, 154 Pa. Super. 392, 1944 Pa. Super. LEXIS 372
Judges: PER CURIAM, March 3, 1944:
Filed Date: 3/3/1944
Status: Precedential
Modified Date: 10/19/2024
The petition for writ of habeas corpus presented to this court sets forth that the petitioner is unlawfully confined in the State Penitentiary for the Eastern District of Pennsylvania as a parole violator. Relator pleaded guilty to several bills of indictment without presentation to the grand jury on February 9, 1927, in the Court of Oyer and Terminer and in the Court of Quarter Sessions of Luzerne County. The charges were robbery, burglary, and larceny. On the same day, he was sentenced on one of the bills, No. 296, February Sessions, 1927, to the Pennsylvania Industrial School at Huntingdon. No action was taken on the other bills. Relator was paroled on December 14, 1928, and finally discharged on May 19, 1929. At the June Sessions, 1929, of the Court of Quarter Sessions of Luzerne County, he was convicted of larceny of an automobile, on bill No. 224 of that term, but on May 24, 1929, before the trial on that indictment, he was sentenced on bill No. 291, February Sessions, 1927, as follows:
"Now May 24, 1929, defendant having entered a plea of guilty to the crime of breaking and larceny, and the same plea to other like offenses, and having been sentenced in one of the cases to the Huntingdon Reformatory, and having served his time and been finally discharged on December 14, 1928, and now having pleaded guilty to the above number and term to having committed breaking and larceny on January 18, 1927 and stealing certain property of the value of $120, and sentence having been postponed in that case pending good *Page 394 behavior, and having been rearrested for stealing an automobile, the court now sentences the defendant in the above case to pay the costs of prosecution, a fine of $500 to the Commonwealth and to undergo imprisonment by separate and solitary confinement in the Eastern Penitentiary, located at Philadelphia, for an indeterminate term, a maximum of which not exceeding ten years and a minimum of not less than five years, and that he stand committed until this sentence be complied with.
"Sentence is postponed in the other cases pending the trial of his recent indictment.
"By the Court
"JONES, J."
The original indictment (No. 291, February Sessions, 1927), which we have before us, does not indicate that sentence was postponed, deferred, or suspended, and the averments of the petition that no action was taken thereon until May 24, 1929, are not denied. The rule to show cause was served upon the Attorney General of the Commonwealth, the District Attorney of Luzerne County, and the Warden of the State Penitentiary for the Eastern District of Pennsylvania.
On June 19, 1929, relator, having been convicted, was sentenced on bill No. 224, June Sessions, 1929. He was received at the Eastern State Penitentiary on June 19, 1929, to serve the following sentences to be computed from May 24, 1929: (1) Bill No. 291, February Sessions, 1927, Luzerne County, five to ten years; (2) Bill No. 224, June Sessions, 1929, Luzerne County, three and one-half to seven years to date from the expiration of sentence imposed on bill No. 291. In accordance with the procedure then in effect, the sentences were lumped, making a minimum of eight and one-half years and a maximum of seventeen years. On June 10, 1936, the board of pardons commuted his minimum sentence on bill No. 224, June Sessions, 1929, from three and *Page 395 one-half years to one day; and on July 12, 1936 after serving a period of seven years, one month, and nineteen days, he was granted what was deemed a parole as to the sentence on bill No. 291, February Sessions, 1927. After serving the one day on bill No. 224, June Sessions, 1929, he was released as on parole for the balance of the maximum sentence. After his release on July 13, 1936, he was subsequently arrested, and pleaded guilty to certain crimes committed in Wyoming County. He was thereupon returned to the Eastern State Penitentiary on June 25, 1938, to serve the unexpired portion of his sentence on bill No. 224, June Sessions, 1929. The maximum sentence on that bill would not expire until June 24, 1945, according to the warden's answer.
Habeas corpus is the proper remedy where the relator is in confinement under a void or illegal sentence. Com. ex rel.Wilhelm v. Morgan,
Moskowitz's Registration Case , 329 Pa. 183 ( 1938 )
Commonwealth v. Harrison , 142 Pa. Super. 453 ( 1940 )
Williams v. Commonwealth , 29 Pa. 102 ( 1857 )
Edwards v. Newland , 271 Pa. 1 ( 1921 )
Commonwealth ex rel. Nuber v. Keeper of Workhouse , 1898 Pa. Super. LEXIS 173 ( 1898 )
Com. ex rel. Wilhelm v. Morgan , 278 Pa. 395 ( 1924 )
Commonwealth v. Mayloy & Keating , 1868 Pa. LEXIS 101 ( 1868 )
Commonwealth Ex Rel. v. Ashe, Warden , 348 Pa. 409 ( 1944 )
Commonwealth Ex Rel. Cox v. Ashe, Warden , 146 Pa. Super. 365 ( 1941 )