as exemplified in Commonwealth ex rel. Arnold v. Ashe, 156 Pa.Super. 451, 40 A.2d 875.'
Whether this statement was intended as a direction or a suggestion, it created some embarrassment, particularly when considered in connection with Wade v. Mayo, supra. Commonwealth ex rel. Arnold v. Ashe, supra, held that one charged with being an habitual criminal under the Pennsylvania statute was entitled to have due notice of the charge and, in effect, that the failure to give notice was the failure to follow the due forms of law. And no proper notice of the charge was given the relator in the instant case.
This court had reached the conclusion that the State remedy had been exhausted, in which it was strengthened by Application of Baer et al., supra. In his application to the Court of Common Pleas the only vital part was the allegation of lack of notice and the failure to observe due process of law. Consequently, the Court of Common Pleas in passing upon the petition, and the Superior Court and the Supreme Court of Pennsylvania in denying the appeals of the relator, had no issue before them except the federal question. Our present findings of fact indicate this, and show that the relator had exhausted his State remedies.
Obeying the direction, or suggestion, of the Circuit Court of Appeals, we take up the embarrassing question of whether this court shall undertake to set aside judgments of appellate courts of Pennsylvania. True, Commonwealth ex rel. Arnold v. Ashe, supra, seemingly contradicts the later ruling of the Superior Court in its decision upon the federal question involved in the present case (159 Pa.Super. 553, 49 A.2d 265), and with no other finding would lead logically to a discharge of the petitioner, but the subsequent denial of the writ by the Superior Court in Commonwealth ex rel. Collins v. Ashe, 159 Pa.Super. 553, 49 A.2d 265, does not stand alone. In the opinion it appears that the petitioner, in his application for parole filed in 1936, had formally admitted the facts which subjected him to the Habitual Criminals Act. By reason of his admission of the facts, the Court held that the error in sentencing was harmless. A like finding by the Supreme Court of Pennsylvania is to be found in Commonwealth ex rel. Dugan v. Ashe, 342 Pa. 77, 19 A.2d 461, in which case a certiorari was denied, 314 U.S. 610, 62 S. Ct. 69, 86 L. Ed. 491; Id., 314 U.S. 712, 61 S. Ct. 294, 86 L. Ed. 567. In such case the Court felt that it would be idle to remand the petitioner to the lower court for re-sentence.
Two appellate courts of Pennsylvania, uniting in opinions as to the curative value of formal admissions of fact which tend to contradict the rights of petitioners to a discharge, this Court feels that it must accept those rulings as establishing the law of the state under the circumstances. A remand of the petitioner to the Court of Common Pleas, in view of these decisions, would be a mere gesture. That court would have the remanded prisoner, with the finding of this court, but would be bound by Commonwealth ex rel. Dugan v. Ashe, supra, and Commonwealth ex rel. Cody v. Smith, 327 Pa. 311, 193 A. 38, and the specific finding of the Superior Court in the present case. The order of this court would not require his discharge. While discussing Commonwealth ex rel. Arnold v. Ashe, supra, it might be well to keep in mind that that case was reported prior to the instant case and not subsequent to it. Despite perhaps more accurate reasoning therein, it seems somewhat out of line to base a practical reversal of a later case upon the reasoning of an earlier one.
While this court has the utmost respect for the Circuit Court of Appeals, and desires to follow its suggestions, it is felt that some misapprehension of the facts existed when the Per Curiam opinion was filed by it, and, so thinking, it is our desire to follow the practice of that court rather than to attempt to carry out a possibly ambiguous direction by it. In doing so, this court, as was intimated by the Circuit Court ( Application of Baer et al., supra) feels that Wade v. Mayo does not preclude it from following the old rule that after state remedies have been exhausted, the proper remedy is by certiorari to the Supreme Court.
It will be remembered that the Supreme Court does not issue the writ as of course, but will consider reasons urged by the state court for failure to issue the Habeas Corpus writ. It did so, and refused the certiorari in Commonwealth ex rel. Dugan v. Ashe, 342 Pa. 77, 19 A.2d 461, a case parallel to the instant case.
The refusal of the prayer of the petitioner in the instant case is based upon the belief that certiorari to the Supreme Court is the proper procedure in this type of case.
And now, to wit, November 9, 1948, the petition of the United States ex rel. Harry Collins, having come on to be heard, upon consideration thereof it is ordered and adjudged that the said petition be, and hereby is, dismissed and discharged, and that said Harry Collins be, and hereby is, remanded to the custody of the Western Penitentiary of Pennsylvania.
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