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COMMONWEALTH EX REL. BROUGH v. BURKE (01/12/51)

January 12, 1951

COMMONWEALTH EX REL. BROUGH
v.
BURKE



COUNSEL

James C. Crumlish, Jr., Philadelphia, for relator.

Ralph B. Umsted, Deputy Atty. Gen., Charles J. Margiotti, Atty. Gen., for appellee.

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

Author: Rhodes

[ 168 Pa. Super. Page 120]

RHODES, President Judge.

Relator presented a petition for writ of habeas corpus to this Court.*fn1 We granted a rule to show cause why the writ should not issue. Answers were filed to

[ 168 Pa. Super. Page 121]

    the petition. We appointed counsel to represent relator before this Court. The case having been listed for argument, counsel made an oral argument and filed a brief on relator's behalf. A deputy attorney general represented the Pennsylvania Board of Parole, filed a brief, and participated in the argument.

On August 5, 1938, relator pleaded guilty in the Court of Oyer and Terminer and General Jail Delivery of Montgomery County to a bill of indictment, No. 145, June sessions, 1938, drawn under the Act of April 15, 1907, P.L. 62, as amended, 19 P.S. § 241, charging him with having committed malicious injury to railroads. On September 9, 1938, that court imposed a general sentence to the Pennsylvania Industrial School (Reformatory) at Huntingdon. The effect of this sentence was to subject the relator automatically to confinement there for a full term of ten years prescribed as the maximum punishment for this offense, Act of May 9, 1913, P.L. 186, § 1, 18 P.S. § 3411 now § 4919, unless sooner released by action of the reformatory authorities. Act of April 28, 1887, P.L. 63, § 6, 61 P.S. § 485. Relator was paroled by the board of trustees on November 7, 1939. While on parole he was convicted of involuntary manslaughter, and sentenced to eighteen months in the Philadelphia County Prison. Upon the expiration of this sentence on March 26, 1942, he was transferred to the Eastern State Penitentiary.*fn2 See Act of April 28, 1887, P.L. 63, § 10, 61 P.S. § 495; Act of April 18, 1929, P.L. 542, 61 P.S. § 71. On November 29, 1943, relator was reparoled by the Pennsylvania Board of Parole; and on

[ 168 Pa. Super. Page 122]

December 6, 1945, he pleaded guilty in the Court of Quarter Sessions of Montgomery County to a charge of operating a motor vehicle while under the influence of intoxicating liquor, and was sentenced to imprisonment for thirty days in the Montgomery County Prison. At the expiration of that term, on January 14, 1946, he was returned to the penitentiary as a parole violator. On May 20, 1947, he was again paroled by the Board of Parole, and recommitted on October 6, 1947, for a technical violation of parole. The Board of Parole calculates the expiration date of relator's sentence to be March 9, 1953. Except for the last time relator was on parole, to wit, from May 20, 1947, to October 6, 1947, no time was credited on relator's sentence other than the time actually spent in the Pennsylvania Industrial School at Huntingdon*fn3 and in the Eastern State Penitentiary.

The Act of June 6, 1893, P.L. 326, § 4, 61 P.S. § 523, which is a supplement to the Act of April 28, 1887, P.L. 63 and which has application to the Pennsylvania Industrial School, provides: 'Whenever any paroled inmate of the said industrial reformatory shall violate his parole and be returned to the institution, the time when he was on parole may, in the discretion of the board of managers, be added to the maximum sentence which he could be required to serve, and, in their discretion, the said paroled inmate may be compelled to serve in addition to the maximum sentence, a period of time equal to the time that he was on parole.'

The powers of the board of managers, later board of trustees, as conferred in the above Act were transferred to the Pennsylvania Board of Parole by virtue of the Act of ...


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