DocketNumber: Misc. Docket 5
Judges: Keller, Baldrige, Rhodes, Hirt, Kenworthey
Filed Date: 12/8/1942
Status: Precedential
Modified Date: 10/19/2024
Argued December 8, 1942. A petition for writ of habeas corpus was presented to this court by the relator Jack Lerner. Rule was granted upon the Attorney General of the Commonwealth of Pennsylvania, the District Attorney of the County of Philadelphia, and the Warden of the Eastern State Penitentiary to show cause why a writ of habeas corpus should not issue. Answers were filed by the district attorney and the warden. Written briefs were presented and the matter was orally argued.
The questions involved arise out of the following facts which are not in dispute: On July 20, 1934, relator, in the Court of Quarter Sessions of Philadelphia County, pleaded nolo contendere to the following bills of indictment: No. 139, December Sessions, 1933, — Sodomy; No. 140, December Sessions, 1933, — Sodomy; No. 692, July Sessions, 1934, — Solicitation to commit sodomy; No. 693, July Sessions, 1934, — Assault and battery, aggravated assault and battery, and assault and battery with intent to ravish.
On bill No. 139, he was sentenced as of July 20, 1934, to the Eastern State Penitentiary for a period of not less than four years nor more than eight years in separate or solitary confinement. He did not receive sentence on the other bills.
On October 20, 1938, relator was released on parole after serving four years and three months of his sentence. On January 30, 1939, while on parole, a true bill of indictment, No. 995, January Sessions, 1939, in the Court of Quarter Sessions of Philadelphia County, was found against him in which he was charged with solicitation to commit sodomy. On February 1, 1939, a jury returned a verdict of guilty on this bill, but a new trial was granted. On February 8, 1939, relator was brought to trial under the same indictment and a verdict of guilty was again returned. On the same day he was sentenced to undergo imprisonment in separate or solitary *Page 267 confinement in the Eastern State Penitentiary for a period of not less than two and a half years nor more than five years, to be computed from January 24, 1939, the date of his commitment.
Relator avers in his petition that on July 2, 1942, he made application for parole to the Pennsylvania Board of Parole on the sentence imposed on bill No. 995, January Sessions, 1939, on the ground that two and one-half years of the sentence had expired on July 24, 1941. He further avers that service of the unexpired term of the original sentence, three years and nine months, was completed on October 24, 1942, and that his application was denied by the board for the reason that sentence imposed on bill No. 995, January Sessions, 1939, did not run concurrently with service of the remainder of the original sentence imposed on bill No. 139, December Sessions, 1933.
The contention of relator in brief is that the Act of May 28, 1937, P.L. 1036, 19 P. S. § 894 et seq., repealed or modified section 10 of the Act of June 19, 1911, P.L. 1055, as last amended by the Act of June 22, 1931, P.L. 862, § 1, 61 P. S. § 305; and that sentence on bill No. 995 ran concurrently with the unexpired term of the original sentence.
We shall not recite again the legislative history of section 10 of the Act of 1911 and the amendments thereto, 61 P. S. § 305, which relate to service of the unexpired original term after conviction for a crime committed during parole. See Narcise v. Eastern StatePenitentiary,
If the Act of May 28, 1937, P.L. 1036, 19 P. S. § 894, 895, 896, did not repeal or modify section 10 of the Act of 1911, as amended, 61 P. S. § 305, relator, since he was committed after conviction to the same penitentiary from which he was released on parole, was required to serve the unexpired portion of the sentence on bill No. 139, December Sessions, 1933, before serving his sentence on bill No. 995, January Sessions, 1939. It is conceded that section 10 of the Act of 1911, as amended, 61 P. S. § 305, mandatorily provides that the two sentences cannot run concurrently. See Com. ex rel. Wall v. Smith et al., supra; Com.ex rel. Stauffer v. Ashe,
The Act of 1937, supra, is an act "Regulating and prescribing the computation and running of sentences for criminal offenses." It reads as follows: "Section 1 . . . . . . . From and after the passage of this act, all sentences for criminal offenses of persons who at the time sentence is imposed are held in custody in default of bail, or otherwise, shall begin to run and be computed from the date of commitment for the offense for which said sentence shall be imposed, unless the person sentenced shall then be undergoing imprisonment under a sentence imposed for any other offense or offenses, in which case the said sentence shall begin to run and be *Page 270 computed, either from the date of imposition thereof or from the expiration of such other sentence or sentences, as the court shall, in its discretion, direct.
"Section 2. The date of commitment referred to in section one of this act, shall be the date of the last commitment for the offense for which the sentence is imposed.
"Section 3. If the sentence imposed shall be to any penitentiary or prison other than that in which the person sentenced shall have been held in custody, it shall be the duty of the court to state in the sentence the date of commitment of such person."
Section 4 contains the usual clause repealing all inconsistent acts and parts of acts.
The two acts do not cover the same subject matter, and they are not repugnant in any of their provisions. See Com. v. Gross,
As a general rule, in the absence of a statute, the sentence imposed begins to run from the date of imposition. 2 Sadler, 2d Ed., § 653, p. 767; 15 Am. Jur., Criminal Law, § 449; Com. exrel. Cox v. Ashe,
It is argued in behalf of relator that parole is imprisonment, and that the Act of 1937, supra, therefore applies to parole. Our Supreme Court has recently held in Com. ex rel. Banks v. Cain,
The position of a parolee is quite different from that of a prisoner, and the Legislature, as disclosed by the respective acts, apparently had this distinction in mind. In Narcise v.Eastern State Penitentiary, supra, *Page 273
Relator's parole was not revoked until February 8, 1939, when he was found guilty and sentenced on bill No. 995, January Sessions, 1939, and returned to the penitentiary. The court in imposing sentence was obliged to compute it from the date of commitment, January 24, 1939. See section 3 of the Act of 1937, 19 P. S. § 896. Upon relator's return to Eastern State Penitentiary on February 8, 1939, he had to serve the balance (three years, nine months) of his original sentence, which expired on November 8, 1942.4 Two and one-half years of his sentence on bill No. 995, January Sessions, 1939 (giving credit for the time spent in jail from the date of commitment to the date of his return to the penitentiary) will expire on April 24, 1945.
Writ is refused.
Kinsella v. Board of Trustees ( 1941 )
Commonwealth Ex Rel. Meinzer v. Smith ( 1935 )
Commonwealth v. Gross ( 1941 )
Narcise v. Eastern State Pen. ( 1939 )
Commonwealth Ex Rel. Stauffer v. Ashe, Warden ( 1940 )
Commonwealth Ex Rel. Wall v. Smith ( 1942 )
Commonwealth Ex Rel. v. Smith ( 1936 )
Com. Ex Rel. Dorillo v. Smith, Warden ( 1941 )
Commonwealth Ex Rel. McGinnis v. Ashe ( 1938 )
Commonwealth Ex Rel. Rossey v. Ashe, Warden ( 1939 )
Commonwealth Ex Rel. Accobacco v. Burke ( 1948 )
Commonwealth Ex Rel. Little v. Keenan ( 1951 )
Commonwealth Ex Rel. Magarahan v. Burke ( 1952 )
Commonwealth Ex Rel. Cooper v. Banmiller ( 1960 )
Commonwealth Ex Rel. Dion v. Martin ( 1957 )
Commonwealth Ex Rel. O'Leary v. Ashe, Warden ( 1943 )
Commonwealth Ex Rel. Monaghan v. Burke ( 1950 )
Commonwealth Ex Rel. Grierson v. Ashe ( 1945 )
Commonwealth Ex Rel. Lieberman v. Smith, Warden ( 1943 )
Commonwealth Ex Rel. Lieberman v. Burke, Warden ( 1945 )
Commonwealth Ex Rel. McAuliffe v. Burke, Warden ( 1946 )
Commonwealth Ex Rel. Harman v. Burke ( 1952 )
Commonwealth Ex Rel. Graham v. Claudy ( 1952 )
Commonwealth Ex Rel. Kunkle v. Claudy ( 1952 )
Commonwealth Ex Rel. Westwood v. Gackenbach ( 1951 )
Commonwealth Ex Rel. Wolkiewicz v. Pennsylvania Parole Board ( 1946 )
Commonwealth Ex Rel. Pyeatte v. Burke, Warden ( 1945 )