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 206]
Robert G. Gibbs has appealed from the order of the Court of Common Pleas of Allegheny County denying his petition for writ of habeas corpus. On May 24, 1951, appellant filed his petition for writ of habeas corpus in the Court of Common Pleas of Allegheny County at No. 2205, July Term, 1951A. On July 9, 1951, a hearing was held in that court at which time he appeared
[ 170 Pa. Super. Page 207]
with counsel and testified.*fn1 At the hearing it was agreed that the only ground upon which appellant sought his discharge on a writ of habeas corpus from the Western State Penitentiary, to which he had been sentenced from Crawford County on February 25, 1947, was that he had been illegally returned from the State of Ohio to the Crawford County jail in Meadville, Pennsylvania, on February 24, 1947. Appellant had escaped from the Crawford County jail on February 22, 1947, where he was confined after entering pleas to charges of burglary and larceny.
Appellant previously filed a petition for writ of habeas corpus at No. 398, January Term, 1949, in the Court of Common Pleas of Allengheny County in which he alleged, inter alia, that his return from Ohio to Pennsylvania was irregular and illegal in that he did not sign, and was not requested to sign, any extradition papers. That petition was dismissed and a writ of habeas corpus refused on October 25, 1948. From that order appellant appealed to this court. With a modification, the order of the court below was affirmed in Com. ex rel. Gibbs v. Ashe, 165 Pa. Super. 35, 67 A.2d 773, on July 14, 1949, and certiorari denied by the Supreme Court of the United States, Gibbs v. Ashe, 338 U.S. 880,
[ 170 Pa. Super. Page 20870]
S.Ct. 151, 94 L.Ed. 540, Id., 339 U.S. 961, 70 S.Ct. 993, 94 L.Ed. 1371. The averment upon which appellant relies in the present proceeding has been before the court below and this court. The question has been adjudicated, and the order of the court below will be affirmed. See Com. ex rel. Orlando v. Smith, 346 Pa. 42, 30 A.2d 534; Com. ex rel. Dugan v. Ashe, 347 Pa. 588, 33 A.2d 32; Com. ex rel. Lieberman v. Burke, 158 Pa. Super. 207, 44 A.2d 597; Com. ex rel. Lewis v. Ashe, 142 Pa. Super. 357, 16 A.2d 433.
The court below, in an opinion by President Judge McNaugher, made this pertinent observation: 'This is one of the extreme cases brought to our attention where petitioners, evidently encouraged by fellow-inmates, have repeatedly brought petitions for writs of habeas corpus. The courts here and elsewhere have been flooded with applications of this sort where gullible prisoners have been led to believe that technicalities of the law have not been observed and that in consequence the penalties for serious crimes, undoubtedly committed, may be avoided. The prisoner in this case was committed to the Western State Penitentiary in proceedings lawfully brought and under sentences lawfully imposed by the court of Crawford County, Pennsylvania, after he had escaped into Ohio and had been brought back by the Pennsylvania authorities. There is no credible evidence that he did not return with the officers voluntarily, even though there was no waiver of extradition proceedings.'
In Com. ex rel. Master v. Baldi, 166 Pa. Super. 413, 421, 72 A.2d 150, 154; allocatur refused by the Supreme Court of Pennsylvania, 166 Pa. Super. xxiv; certiorari denied by Supreme Court of the United States, Master v. Baldi, 340 U.S. 866, 71 S.Ct. 88, 95 L.Ed. 632, we said : 'A prisoner who is regularly indicted and tried under ...