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COMMONWEALTH EX REL. TANNER v. ASHE (11/13/50)

November 13, 1950

COMMONWEALTH EX REL. TANNER, APPELLANT,
v.
ASHE, WARDEN



Appeal, No. 177, Miscellaneous Docket, 1950, from order of Court of Common Pleas of Allegheny County, July T., 1950, No. 738, in case of Commonwealth of Pennsylvania ex rel. Clarence E. Tanner v. Stanley P. Ashe, Warden, Western State Penitentiary. Order affirmed.

COUNSEL

W. Gordon Rauck, for appellant.

Owen B. McManus, Assistant District Attorney, with him William S. Rahauser, District Attorney, for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.

Author: Stern

[ 365 Pa. Page 420]

OPINION BY MR. JUSTICE HORACE STERN

Convicted some years ago of murder in the first degree and sentenced to life imprisonment, the relator, Clarence E. Tanner, applied to the court below for a writ of habeas corpus on the ground that he had been indicted and tried for the commission of a crime different from that for which he had been held to await the action of the grand jury. The court below refused the writ, from which order the relator now appeals.

The homicide arose out of a quarrel between the relator and one Riley during the course of a crap game; following an argument between them the relator shot and killed Riley. A coroner's inquest held into the death of the deceased "recommended" that Tanner be held for the grand jury upon a charge of manslaughter. The district attorney prepared a bill of indictment charging murder and voluntary manslaughter;

[ 365 Pa. Page 421]

    a true bill was found by the grand jury and the relator was tried thereon, convicted and sentenced as above stated.*fn*

In Maginnis's Case, 269 Pa. 186, 195, 112 A. 555, 558, it was stated that "It is established law that, when a prosecuting officer is satisfied from his investigations that a higher grade of offense, cognate to the one returned by the committing magistrate, is properly chargeable against a defendant, he may draw the bill accordingly...." In that case the return by a justice of the peace charged the defendant with simple assault and battery; it was held not improper on the part of the district attorney to draw an indictment charging felonious assault and battery, -- a higher degree of the crime. In Commonwealth v. Musto, 348 Pa. 300, 303, 35 A.2d 307, 309, it was stated that a "defendant should not be required to answer a charge different from, and unrelated to, the one for which he was arrested and held to bail." In Nicholson v. Commonwealth, 96 Pa. 503, where an information had been made for seduction under promise of marriage, it was held that an indictment could properly include counts for fornication and bastardy. In Commonwealth v. Danner, 79 Pa. Superior Ct. 556, 558, it was said that "Any crime arising out of the same transaction can be laid in the indictment"; it was there held that an indictment for receiving stolen goods could be presented by the district attorney upon an information charging larceny. See also Commonwealth v. Ruff, 92 Pa. Superior Ct. 530, 536.

The killing of Riley was a single act. The circumstances attending it, its justification, and the grade of the crime thus ...


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