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

July 20, 1950

COMMONWEALTH EX REL. PALMER
v.
ASHE, WARDEN



COUNSEL

Dominic Palmer, in pro. per.

William S. Rahauser, Dist. Atty., Joseph D. O'Connell, Asst. Dist. Atty., Pittsburgh, for appellee.

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

Author: Per Curiam.

[ 167 Pa. Super. Page 89]

PER CURIAM.

Relator in this habeas corpus proceeding has appealed from the order of the Court of Common Pleas of Allegheny County dismissing his petition and refusing a writ of habeas corpus.

On December 18, 1930, relator was released from the Pennsylvania Training School at Morganza, where he

[ 167 Pa. Super. Page 90]

    had been committed on July 21, 1927, for breaking and entering. He had been released from Polk State School, a mental institution, on September 10, 1920. He was committed to Thorn Hill School for larceny on October 31, 1921; after being paroled and returned, he was finally discharged on June 1, 1926. On January 9, 1931, he was indicted by a grand jury in Allegheny County on two bills of indictment: (1) Armed robbery, No. 23, January Sessions, 1931; (2) attempted armed robbery, No. 24, January Sessions, 1931. The offenses for which relator was indicted were committed on the same day of his discharge from Morganza. At the hearing before the magistrate on December 22, 1930, four witnesses for the Commonwealth appeared and testified to the commission of the crimes with which he was charged and for which he was subsequently indicted. On January 16, 1931, relator pleaded guilty in the Court of Oyer and Terminer of Allegheny County to the two bills of indictment. Entry of the pleas was noted on the indictments. The court imposed a sentence of not less than five years nor more than fifteen years in the Western State Penitentiary upon each bill, the sentence on bill No. 23 to begin at the expiration of the sentence on bill No. 24. It does not appear that relator had counsel at the time of entry of pleas and when sentenced.

Relator was released on parole from the penitentiary on September 19, 1947, and returned as a violator of parole rules on April 1, 1949. He has been given credit for that period while on parole. His maximum sentence will expire on August 26, 1957, as the result of previous action by the Pennsylvania Parole Board.

On October 1, 1949, relator filed in the Court of Common Pleas of Allegheny County his petition for writ of habeas corpus. He averred therein that his commitment was illegal for the following reasons: (1) That he pleaded guilty to an unspecified charge; (2) that his plea was illegally appropriated to other indictments;

[ 167 Pa. Super. Page 91]

(3) that he was not permitted to learn the nature of the accusation against him; (4) that he was not permitted to face his accuser in a 'magistrate's office or in the court room'; (5) that his plea contained no waiver of ...


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