Opinion
March 25, 1947.
April 14, 1947.
Courts — Jurisdiction — Common pleas — Habeas corpus — Warden of penitentiary in another county.
A court of common pleas of one county has no jurisdiction to issue a writ of habeas corpus directed to the warden of a penitentiary situate in another county.
Submitted March 25, 1947.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeal, No. 49, March T., 1947, from order of C. P., Erie Co., Sept. T., 1946, No. 574, in case of William F. Miller v. Court of Common Pleas of Erie County. Order affirmed.
Proceeding upon petition for writ of habeas corpus.
The facts are stated in the opinion by LAUB, J., of the court below as follows:
This is a petition for a writ of habeas corpus made by an inmate of the Western Penitentiary of Pennsylvania, which is situate in the County of Allegheny. The petition was sent to this court by mail, and on July 31, 1946, we directed the Prothonotary to file it without cost to the petitioner. The same day we granted a rule to show cause and requested the District Attorney to appear for the Commonwealth and to serve notice of the proceedings upon the Attorney General. The return day of the rule was September 2, 1946. The Commonwealth filed its answer on August 29, 1946, denying that the petitioner is being illegally restrained of his liberty, and denying the jurisdiction of this court to issue a writ of habeas corpus.
On July 15, 1938, the petitioner, while on parole from the Western Penitentiary of Pennsylvania, perpetrated an assault with intent to commit sodomy upon a young boy. On September 13, 1938, he was found guilty of this charge in the Court of Quarter Sessions of Erie County and was resentenced to the Western Penitentiary for an indefinite term of imprisonment, the minimum of which was two years and six calendar months and the maximum of which was five years. The sentencing judge designated that the second sentence was to run consecutively to the term of petitioner's parole.
The petitioner alleges that in view of the Act of 1937, May 28, P. L. 1036, 19 PS 894 et seq., the sentencing court was without power to make the last sentence consecutive to the unexpired portion of the original sentence, since that act requires that sentences shall begin to run and shall be computed from the date of commitment for the offenses for which said sentences are imposed. With this argument we need not long concern ourselves as we are convinced that we have no jurisdiction to grant the prayer of the present petition. However, it may be pointed out that the precise question raised by this action was fully considered in Commonwealth ex rel. Lerner v. Smith, 151 Pa. Super. 265, where it was decided that the Act of 1937, supra, does not repeal or modify Section 10 of the Act of June 19, 1911, P. L. 1055, as last amended 1931, June 22, P. L. 862, 61 PS 305, which provides, inter alia, that if a convict commits a crime during parole and is sentenced to the same institution from which he was paroled originally the unexpired portion of his original sentence is to be served before he commences to serve the sentence imposed for the second crime.
In any event we have no jurisdiction to issue a writ of habeas corpus under the present circumstances. A court of common pleas of one county has no jurisdiction to issue a writ of habeas corpus directed to the warden of a penitentiary situate in another county: Commonwealth v. Montgomery, 152 Pa. Super. 342.
And now, to wit, October 16, 1946, the rule granted July 31, 1946, to show cause why a writ of habeas corpus should not be issued, is discharged.
Petitioner appealed.
William F. Miller, appellant, in propria persona.
Damian J. McLaughlin, District Attorney, and Paul B. Joslin, Assistant District Attorney, for appellee.
The order of the court below discharging the rule to show cause why a writ of habeas corpus should not be issued is affirmed upon the opinion of Judge LAUB.