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COMMONWEALTH EX REL. BERRY v. ASHE (07/20/50)

July 20, 1950

COMMONWEALTH EX REL. BERRY
v.
ASHE, WARDEN



COUNSEL

Edward A. Heights, Pittsburgh, for appellant.

Owen B. McManus, Asst. Dist. Atty., Pittsburgh, William Hollis, Dist. Atty., of Lock Haven, for appellee.

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

Author: Per Curiam.

[ 167 Pa. Super. Page 172]

PER CURIAM.

The Court of Common Pleas of Allegheny County dismissed relator's petition for writ of habeas corpus and refused the writ. Relator has appealed.

The court below decided the matter on relator's petition, the answers thereto, and the original records. See Commonwealth v. Curry, 285 Pa. 289, 298, 299, 132 A. 370.

The petition merely avers that the relator was not at any time represented by counsel, and that he did not waive the right to counsel, citing and relying upon Commonwealth ex rel. Schultz v. Smith, 139 Pa. Super. 357, 11 A.2d 656. The petition contains no other factual averments.

Relator and one Delbert L. Quick were arrested on December 20, 1943, and charged with commission of

[ 167 Pa. Super. Page 173]

    larceny of a motor vehicle and burglary on October 31, 1943. After preliminary hearing they were held for court. Each signed a written confession. To the bills of indictment (No. 12, January Sessions, 1944, larceny, and No. 13, January Sessions, 1944, burglary) both defendants, on December 22, 1943, signed pleas of guilty and waived the presentation of indictments to a grand jury of Clinton County. See Act of April 15, 1907, P.L. 62, as amended by the Act of June 15, 1939, P.L. 400, 19 P.S. ยง 241. Prior to the imposition of sentence in the Court of Oyer and Terminer of Clinton County, Judge Hipple, President Judge of the Courts of Clinton County, interrogated relator and the other defendant as follows:

'Q. Do you wish to have counsel to represent you? ...


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