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COMMONWEALTH EX REL. WALLACE v. BURKE (11/15/51)

November 15, 1951

COMMONWEALTH EX REL. WALLACE
v.
BURKE, WARDEN, EASTERN STATE PENITENTIARY



COUNSEL

Charlton P. Wallace, pro se.

James W. Tracey, Jr., First Asst. Dist. Atty., John H. Maurer, Dist. Atty., Philadelphia, for appellee.

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

[ 169 Pa. Super. Page 634]

PER CURIAM.

Relator has appealed from the order of the Court of Quarter Sessions of Philadelphia County dismissing his petition for writ of habeas corpus. The order was entered on March 22, 1951, after hearing.

On February 5, 1945, relator was tried and convicted in the Court of Oyer and Terminer of Philadelphia County on two bills of indictment charging incestuous rape. On bill No. 560, January Sessions, 1945, he was sentenced to imprisonment in the Eastern State

[ 169 Pa. Super. Page 635]

Penitentiary for a term of not less than two and one-half years nor more than five years. No sentence was imposed on the other bill, No. 561, January Sessions, 1945.

On February 21, 1945, the court on its own motion set aside the sentence and granted a new trial. Relator was again tried, before another judge, and convicted on both bills on April 18, 1945. He was thereupon sentenced on bill No. 560 to serve a term of not less than seven and one-half years nor more than fifteen years in the Eastern State Penitentiary, and on bill No. 561 to serve a term of not less than two and one-half years nor more than five years in the same institution, the sentences to run consecutively. On May 1, 1945, within the term during which the sentences were imposed, the court reconsidered both sentences and sentenced relator to a term of not less than five years nor more than fifteen years in the Eastern State Penitentiary on bill No. 560, and to a term of not less than two years nor more than five years in said institution on bill No. 561, the sentences to run consecutively. The effective date of the first sentence was January 24, 1945.

Relator complains that the action of the trial court in granting a new trial on its own motion was illegal; that it was not within the power of the court; that it was done in relator's absence; and that the result thereof, by reason of the second trial, was to place him in double jeopardy.

We are unable to find any merit in his complaints. As stated in Com. v. Gabor, 209 Pa. 201, 204, 58 A. 278, 279: 'The right of a court to order a new trial of its own motion is indisputable. It is one of the essential functions of a judge sitting with a jury.' This rule is equally applicable to criminal and civil cases. See Com. v. Jones, 303 Pa. 551, 154 A. 480; Brown v. George, 344 Pa. 399, 25 A.2d 691; Tate v. Metropolitan Life

[ 169 Pa. Super. Page 636]

Insurance Co., 149 Pa. Super. 558, 27 ...


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