Appeal, No. 84, March T., 1949, from judgment of Superior Court, No. 211, Miscellaneous Docket, in case of Commonwealth of Pennsylvania ex rel. Edward Milewski v. Stanley P. Ashe, Warden, State Penitentiary, Western District of Pennsylvania. Judgment reversed.
Michael von Moschzisker, for appellant.
Thomas J. Kalman, Assistant District Attorney, with him Fred L. Brothers, District Attorney, for Commonwealth.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. CHIEF JUSTICE MAXEY
Relator filed a petition in the Superior Court for a Writ of Habeas Corpus. On September 29th, 1948, the Writ was refused and an appeal was allowed to this Court and we reversed the order of the Superior Court, with directions to remit the record to the Court of Oyer and Terminer of Fayette County with directions to that court to afford the relator an opportunity to support by competent testimony the material allegations of his petition, the complete record then to be "returned to the Superior Court for appropriate action on the petition for the writ". This order was carried out.
The Superior Court in an opinion filed November 15, 1949, said, inter alia: "Relator's petition for writ of
habeas corpus is refused. The question involved is so 'important as to make it expedient that the case should be decided by the Supreme Court,' and, accordingly, this case is certified to the Supreme Court in conformity with the Act of June 24, 1895, P.L. 212, § 10, 17 PS § 197."
The basic allegation of the petition for the writ was that the relator was not in court when the jury convicted him of assault and battery with intent to rob. He was sentenced to a term of not less than four years nor more than eight years in the Western State Penitentiary. He committed this felony (Act of June 24, 1939, P.L. 872, 18 PS 4704) while he was on parole from a sentence which he was serving for robbery.
The testimony taken in the Court of Oyer and Terminer of Fayette County established the fact that when the jury returned a verdict of guilty the defendant was not present in the courtroom, but was in jail. The relator had immediate knowledge of the jury's verdict but no action was taken by the relator or his counsel in respect thereto. No motion was made for a new trial and no appeal was taken from the judgment in sentence.
The Superior Court in its opinion said: "In capital cases it is unquestionably reversible error for the court to receive the verdict of the jury without the defendant being present. Dunn v. Com., 6 Pa. 384; Dougherty v. Com., 69 Pa. 286; Com. v. Gabor, 209 Pa. 201, 58 A. 278. Cf Com. v. Johnson, 348 Pa. 349, 35 A.2d 312. This is not equally true in non-capital cases." The Superior Court referred to Dunn v. Com., 6 Pa. 384 (a capital case) and Prine v. Com., 18 Pa. 103 (a non-capital case) both of which lay down the rule that a conviction for any felony will be reversed where the prisoner was not present in court at the rendition of the verdict. The ...