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COMMONWEALTH EX REL. WESTWOOD v. GACKENBACH (11/15/51)

November 15, 1951

COMMONWEALTH EX REL. WESTWOOD
v.
GACKENBACH, WARDEN



COUNSEL

Samuel Monroe Westwood, Jr., in pro. per.

No book or appearance for appellee.

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

[ 169 Pa. Super. Page 638]

PER CURIAM.

This is an appeal from the order of the Court of Common Pleas of Northampton County dismissing relator's petition for a writ of habeas corpus. Relator is presently confined in the Northampton County Prison. See Act of May 10, 1871, P.L. 706.

Upon entering pleas of guilty to a number of indictments charging burglary and larceny (Nos. 104, 113, 114, 115, 116, 117, 118, 142, 143, September Term, 1941), the relator, Samuel Westwood, Jr., was sentenced to imprisonment in the Northampton County Prison for a term of not less than four years nor more than eight years, the sentences being concurrent and effective as of November 10, 1941. On December 6, 1945, he was paroled. On November 9, 1946, he was arrested and subsequently pleaded guilty to a charge of burglary (No. 149, September Term, 1946) committed while on parole. On December 9, 1946, he was sentenced upon this new charge to imprisonment in the Northampton County Prison for a term of not less than four years nor more than eight years, sentence to be computed from the date thereof, December 9, 1946.

In March, 1947, the warden of the Northampton County Prison petitioned the Department of Welfare

[ 169 Pa. Super. Page 639]

    for the transfer of relator to the Eastern State Penitentiary. See Act of July 11, 1923, P.L. 1044, as amended by the Act of April 23, 1929, P.L. 640, 61 P.S. § 72. The petition was granted subject to the approval and consent of the Court of Quarter Sessions of Northampton County; such approval and consent were given, and the transfer was effected.

On December 9, 1950, the Pennsylvania Board of Parole issued an order paroling relator from the sentence last imposed, the sentence of December 9, 1946. It is to be noted that the date of such order was the expiration date of the minimum term of such sentence if computed according to the directive of the sentencing court. The order of release, however, provided for relator's recommitment to the Northampton County Prison. The purpose of such recommitment was to require relator to serve the balance of his original maximum sentence remaining unserved at the time of his violation of parole by reason of his conviction of the crime committed during such parole period.

Relator takes the position that upon his recommitment to the same institution from which he had been paroled -- upon his conviction of a crime committed during the parole period -- he immediately began serving the unserved balance of his original sentence, and that he has served this in full. He further contends that he has been paroled from the second sentence, for the offense committed while on parole, and therefore he should be released.

We have often stated the law requires that, when a convict is sentenced for a crime committed while on parole to the same institution from which he had been released on parole, service of the remainder of the term originally imposed shall precede the commencement of the term imposed for the later offense. The Act of June 19, 1911, P.L. 1055, § ...


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