Carl Blanchfield, Pittsburgh, for appellant.
William S. Rahauser, Dist. Atty., Henry R. Smith, Jr., Asst. Dist. Atty., Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 194]
This is a habeas corpus proceeding which is before us on appeal by relator from an order of the Court of Common Pleas of Allegheny County discharging rule to show cause and denying his petition for writ of habeas corpus.
Relator and a co-defendant, Joseph Tachoir, were indicted, tried, and found guilty after a trial by a jury on January 20, 1949, on charges of burglary and receiving stolen goods, in the court of Oyer and Terminer of Allegheny County. On that date relator was sentenced to a term of not less than five years nor more than ten years in the Western State Penitentiary, the sentence to be effective as of December 13, 1948. The co-defendant, Tachoir, filed a motion for a new trial. Upon being denied, Tachoir appealed to this court, whereupon judgment and sentence were reversed and a new trial ordered on January 12, 1950, in Com. v.
[ 170 Pa. Super. Page 195]
Tachoir, 166 Pa. Super. 239, 70 A.2d 474. Relator did not file a timely motion for a new trial. However, on April 17, 1950, relator was permitted to file a motion for new trial nunc pro tunc which was granted. Relator and Tachoir were again tried on October 11, 1950, before President Judge Graff of the Thirty-third Judicial District, specially presiding, and a jury. The verdict of the jury was guilty as to both. Tachoir again filed a motion for a new trial which was refused on January 7, 1951. Relator failed to file a motion for a new trial after the second conviction. On April 2, 1951, relator was sentenced to a term of not less than five years nor more than ten years in the Western State Penitentiary, the same to be effective as of December 13, 1948. This was the same sentence as imposed after the first trial. The record shows that on February 15, 1951, 'sentence was deferred as to Cormac McNelis by reason of the illness of Judge Graff,' who had presided at relator's second trial.
Relator in his petition for writ of habeas corpus filed on July 2, 1951, in the Court of Common Pleas of Allegheny County, avers that no sentence was imposed during the term following his conviction on October 11, 1950, and that, no order having been entered postponing, deferring, or suspending sentence, the sentence imposed on April 2, 1951, was without authority of law and therefore void.
In Com. v. Crow, 48 Pa. Super. 373, 380, we held: 'The courts have discretionary power to permit a motion for a new trial to be filed nunc pro tunc at any time within the term at which the judgment was entered. The common-law power of the court below to set aside the judgment, obtained adversely, and grant a new trial in the absence of an allegation of fraud, expires with the end of the term at which the judgment was entered.' See Com. v. Carpenter, 163 Pa. Super. 30, 60 A.2d 407. Although the original trial judge
[ 170 Pa. Super. Page 196]
may have had no power to grant relator a new trial under the circumstances, it would appear that the action of the court in granting relator a new trial was predicated upon our reversal of the judgment and sentence of relator's co-defendant, Tachoir, because of an error in the charge of the court, the erroneous charge being applicable to the trial of relator ...