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COMMONWEALTH EX REL. HOLLY v. ASHE (06/12/50)

June 12, 1950

COMMONWEALTH EX REL. HOLLY
v.
ASHE, WARDEN



COUNSEL

Valera Grapp, Pittsburgh, for appellant.

John I. Munson, Asst. Dist. Atty. Uniontown, Owen B. McManus, Asst. Dist. Atty., Pittsburgh, Fred L. Brothers, Asst. Dist. Atty., Uniontown, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.

Author: Dithrich

[ 166 Pa. Super. Page 600]

DITHRICH, Judge.

Relator has appealed from an order of the court below dismissing his petition for a writ of habeas corpus. He contends he was illegally sentenced on two convictions of bringing stolen property into this Commonwealth and on three convictions of receiving stolen goods.

The material and pertinent facts, which are not in controversy, are as follows: On December 12 and December 14, 1946, relator was tried and convicted at Nos. 21/152 and 24/156 September Sessions, 1946, respectively, in the Court of Quarter Sessions of Fayette County. Motions for a new trial and in arrest of judgment were filed in each case, and after argument before the court en banc the motions were refused on February 26, 1947. Sentence was not imposed until March 3, 1947, after the expiration of the December term of court at which relator was tried and convicted. He was sentenced on the third count '(Bringing stolen property into State)' of each indictment to undergo imprisonment in the Western Penitentiary for not less than two and one-half years and not more than five, years, the sentence at No. 21/152 to commence and be computed from the expiration of the sentence imposed at No. 25/156.

On March 13, 1947, at No. 13/109 September Sessions, 1946, in the same court, he was found guilty of receiving stolen goods. On April 1, 1947, he was sentenced at No. 13/109 to undergo imprisonment in the Western Penitentiary for not less than one year and not more than five years, the sentence to commence and be computed from the expiration of the

[ 166 Pa. Super. Page 601]

'amended' sentence 'this' day imposed at No. 21/152 September Sessions, 1946. The sentence at No. 21/152 and the sentence at No. 25/156 were each 'amended' on April 1, 1947, as follows: 'The defendant, John 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).' (Amendment italicized.)

No explanation has been offered as to why the sentences were 'amended' by imposing sentence on the fourth count in addition to the original sentence on the third count. But since the sentence of two and one-half to five years in the Penitentiary is warranted under the third count in each indictment, the sentence is legally sustainable. Section 818 of the Penal Code of 1939, June 24, P.L. 872, 18 P.S. § 4818, provides punishment by fine or imprisonment, by separate and solitary confinement at labor, nor exceeding five years, or both, for bringing stolen goods into the State. Section 817 of the Code, 18 P.S. § 4817, provides only simple imprisonment for receiving stolen goods. But in Commonwealth ex rel. Vincent v. Smith, 132 Pa. Super. 469, at pages 470, 471, 1 A.2d 838, 839, where defendant was sentenced to undergo imprisonment in the Eastern State Penitentiary for a period of not more than ten years nor less than five years on an indictment containing three counts, the third count of which was receiving stolen goods, this Court held that since the sentence could legally have been pronounced on either the first or second count, 'It was not an illegal cumulation of sentences * * * a sentence is legal, if it is warranted by any count in the indictment.'

However, the sentence at No. 13/109 September Sessions, 1946, 'Charge: Receiving Stolen Goods,' of not less than one year and not more than five years in the Western State ...


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