June 27, 1951
COMMONWEALTH EX REL. STATTI
Original jurisdiction. Miscellaneous Docket No. 1747, petition for writ of habeas corpus in case of Commonwealth of Pennsylvania ex rel. Eugene Henry Statti v. Frank Coen, Sheriff of Lawrence County. Writ refused.
James M. Keller, for relator.
Sherman K. Levine, District Attorney, for Commonwealth.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
[ 368 Pa. Page 227]
OPINION BY MR. JUSTICE JONES
The question involved on this petition for a writ of habeas corpus is the same as in Commonwealth ex rel. Holly v. Ashe, at p. 211 ante. The petitioner sought to invoke the original jurisdiction of the Superior Court which certified the petition to this court in order that it might be considered and passed upon along with the Holly case. Up to and including the sentencing of the relator, the facts of the present case are not materially distinguishable from the facts of the Holly case. The subsequent difference between the two cases is of no pertinency to the question raised.
Statti was tried on June 15, 1949, at the June term of the Court of Oyer and Terminer and Quarter Sessions of Lawrence County on indictments charging him, respectively, with felonies and misdemeanors. He was found guilty on the same day on the misdemeanor charges only. He filed a motion for a new trial which, after argument thereon before the court en banc, was refused on November 25, 1949, which was in the September term of the court. During all of this time Statti was at large on bail. On November 26, 1949, the district attorney notified the defendant's attorneys to produce him in court for sentence on December 7, 1949, which was the first day of the succeeding (December) term. The defendant appeared at that time and was sentenced. He appealed to the Superior Court from the judgment of sentence, seeking a new trial on he ground
[ 368 Pa. Page 228]
that the trial court had committed reversible error. He did not then contend that the sentence was void because it had been imposed at a term subsequent to the term of conviction. However, that fact is of no present importance, certainly not in the relator's favor. The Superior Court overruled the appellant's assignments and affirmed the judgment: see Commonwealth v. Statti, 166 Pa. Superior Ct. 577, 585, 73 A.2d 688.
The present petition is based solely on the action of the Superior Court in Commonwealth ex rel. Holly v. Ashe, 166 Pa. Superior Ct. 599, 74 A.2d 182, which we have today reversed: see p. 211 ante. What we there said is equally dispositive of this petition which is accordingly denied.
ING OPINION BY MR. JUSTICE HORACE STERN
Because of the reasons set forth in my dissenting opinion in Commonwealth, ex rel. Holly v. Ashe, Warden, 368 Pa. 211, 82 A.2d 244, I dissent in this case also.
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