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UNITED STATES EX REL. HOLLY v. PENNSYLVANIA

December 13, 1948

UNITED STATES ex rel. HOLLY
v.
COMMONWEALTH of PENNSYLVANIA



The opinion of the court was delivered by: GOURLEY

This proceeding involves application for leave to file in forma pauperis petition for wrut of habeas corpus, and the request for issuance of a rule thereon to show cause why the petitioner should not be discharged from the custody of the law.

(a) The allegations of fact set forth in the petition.

 (b) Records of the Superior Court of the Commonwealth of Pennsylvania.

 (c) Records of the Supreme Court of the Commonwealth of Pennsylvania.

 (d) Records in the Court of Common Pleas of Allegheny County, Pennsylvania.

 (e) Records in the Court of Quarter Sessions and in the Court of Oyer and Terminer and General Jail Delivery for Fayette County, Pennsylvania.

 In the Court of Oyer and Terminer and General Jail Delivery for the County of Fayette, Commonwealth of Pennsylvania the following indictments were returned against the petitioner, John J. Holly: *fn1"

 The petitioner, John J. Holly, entered a plea of not guilty to all of said indictments and was represented by a very able and experienced member of the Bar in Fayette County.

 In each of said trials the petitioner, John J. Holly, was convicted and the following sentences were imposed by the Court:

 (1) No. 25/156 September Term, 1946. On March 3, 1947, the defendant, John J. Holly, was sentenced on the third could of said indictment -- bringing stolen property into the Commonwealth of Pennsylvania. Sentence -- 'To pay the costs of prosecution, a fine of one dollar to the Commonwealth, and undergo an imprisonment in the Western Penitentiary for an indeterminate period of not less than two and one-half years and not more than five years, to be computed from July 25, 1946. On the other counts in this indictment, sentence is suspended until further order of this court, a sentence of imprisonment thereon in the penitentiary not being authorized.'

 On April 1, 1947, the sentence imposed on March 3, 1947, was amended to read as follows: 'The defendant, John J. Holly, is sentenced on the Third Count (bringing stolen property into state) and on the Fourth Count (receiving an automobile knowing the same to have been stolen) to pay the costs of prosecution, a fine of one dollar to the Commonwealth, and undergo an imprisonment in the Western Penitentiary for an indeterminate period of not less than two and one-half years and not more than five years, to be computed from July 25, 1946. On the other counts in this indictment sentence is suspended until further order of this court, a sentence of imprisonment thereon in the penitentiary not being authorized.'

 (2) No. 21/152 September Term, 1946. On March 3, 1947, the defendant, John J. Holly, was sentenced on the third count of said indictment -- bringing stolen property into the Commonwealth of Pennsylvania. Sentence -- To 'pay the costs of prosecution, a fine of one dollar to the Commonwealth, and undergo an imprisonment in the Western Penitentiary for an indeterminate period of not less than two and one-half years and not more than five years, the same to commence and be computed from the expiration of the sentence this day imposed at No. 25/156 September Term, 1946. On the other counts in this indictment sentence is suspended until further order of this court, a sentence of imprisonment thereon in the penitentiary not being authorized.'

 On April 1, 1947, the sentence in this case imposed on March 3, 1947, was amended to read as follows: 'The defendant, John J. Holly, is sentenced on the Third Count (Bringing stolen property into state) and on the Fourth Count (Receiving an automobile, knowing the same to have been stolen), to pay the costs of prosecution, a fine of one dollar to the Commonwealth and undergo an imprisonment in the Western Penitentiary for an indeterminate period of not less than two and one-half years and not more than five years, the same to commence and be computed from the expiration of the sentence this day imposed at No. 25/156 September Term, 1946. On the other counts in this indictment sentence is suspended until further order of this court, a sentence of imprisonment thereon in the penitentiary not being authorized.'

 (3) No. 13/109 September Term, 1946. On April 1, 1947, the defendant, John J. Holly, was sentenced. Sentence -- 'To pay the costs of prosecution and undergo an imprisonment in the Western Penitentiary for an undeterminated period of not less than one year and not more than five years, to commence and be computed from the expiration of the amended sentence this day imposed at No. 21/152 September Term, 1946.'

 The total amount of the sentences imposed on said three indictments, since the sentences were to run consecutively, was commitment of the defendant to the Western Penitentiary for a minimum period of not less than six years and a maximum period not to exceed fifteen years. In addition thereto, the defendant is subject to the imposition of sentences on the other counts of said indictments at the will of the Court since no sentences were imposed for those offenses in connection with which a commitment to the penitentiary was not authorized under the law of the Commonwealth of Pennsylvania.

 This Court has read the complete transcript of the trials which were held as they relate to Indictments 21/152 September Term, 1946, and 25/156 September Term, 1946. No trial record was made in the trial of Indictment 13/109 September Term, 1946.

 The defendant, through his counsel filed motions for a new trial and/or arrest of judgment as to Indictments 21/152 and 25/156 September Term, 1946. The motions were argued by the defendant personally and his able counsel before the court en bane, and on February 26, 1947 the motions were refused.

 On March 22, 1948, a petition for writ of habeas corpus was filed in the Supreme Court of the Commonwealth of Pennsylvania, all of which more fully appears at Miscellaneous Docket No. 1531. On April 15, 1948, by per curiam order, the writ was refused. On May 14, 1948, a petition for writ of habeas corpus was filed in the United States District Court for the Western District of Pennsylvania at No. 147 Habeas Corpus, and said petition was denied by another member of this Court. On June 29, 1948, a petition for writ of habeas corpus was filed in the Court of Common Pleas of Allegheny County, Pennsylvania, at No. 2874 July Term, 1948. After consideration thereof, on July 29, 1948, the petition for writ of habeas corpus was refused, and no appeal was filed with any appellate court of the Commonwealth of Pennsylvania. On August 31, 1948, a petition for writ of habeas corpus was filed in the Superior Court of the Commonwealth of Pennsylvania at No. 210 Miscellaneous Docket. On September 27, 1948, the petition for writ of habeas corpus was refused. On October 18, 1948, a petition for writ of habeas corpus was filed in the United States District Court for the Western District of Pennsylvania, at No. 149 Habeas Corpus, and this petition was withdrawn by John Holly on October 29, 1948.

 On November 16, 1948, a petition for writ of habeas corpus was presented to the Clerk of the United States District Court for the Western District of Pennsylvania, and the matter now before the Court relates to the consideration and disposition which should be made of said petition.

 The petitioner has labored the courts with petitions of a similar nature for a period of approximately a year. In order that the alleged denial of constitutional rights can be finally adjudicated and one court or the other will not be subject in the future to a continued harassment with matters of a similar nature, I have considered the various claims in detail.

 Question 1 -- Was the petitioner denied the protection of the Fourth Amendment to the Constitution? U.S.C.A. Const. Amend. IV.

 It is contended that he was arrested July 11, 1946, without a warrant; was not informed as to the cause of arrest; was taken to another city, lodged in jail, denied counsel, held incommunicado and on July 13, 1946, was transferred to Fayette County Jail; was unable to obtain counsel until July 15, 1946; was not given a preliminary hearing before a magistrate until July 17, 1946; that arresting officers without search warrants entered his residence, seized his automobile and entered several garages of petitioner, and appropriated $ 1500 in United States currency, personal papers, books, tools, etc.

 Petitioner herein was under no coercion when he appeared in court and no confession was secured from him. Allowance of a writ upon the basis of this allegation would constitute a punitive measure against unrelated wrongdoing by the police. These are not the purposes of a writ of habeas corpus. Power to grant such a writ is not to be sued as an indirect mode of disciplining misconduct. United States v. Mitchell, 322 U.S. 65, 64 S. Ct. 896, 88 L. Ed. 1140; Slaughter v. Wright, 4 Cir., 135 F.2d 613.

 Where a person is deprived of his liberty by the arresting officers, lodged in a cell and held in custody incommunicado and brutally beaten, for purpose of having petitioner make confession of guilt, this is not sufficient to justify issuance of writ of habeas corpus where no confession had been received or offered in evidence. Dorsey v. Gill, 80 U.S.App.D.C. 9, 148 F.2d 857, certiorari denied, 325 U.S. 890, 65 S. Ct. 1580, 89 L. Ed. 2003.

 Where an accused is arrested without warrant and held incommunicado without charge or indictment until several weeks there after, during all of which time the defendant protests his innocence, and no incriminating statements were made during the said period, or no claim was made that this illegal incarceration in any way affected the subsequent trial, this is not ground for collateral attack in habeas corpus on the judgment. Hampson v. Smith, ...


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