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COMMONWEALTH v. RICHARDSON ET AL. (01/20/53)

January 20, 1953

COMMONWEALTH
v.
RICHARDSON ET AL.



COUNSEL

J. Howard Neely, Mifflintown, for appellants.

Harold F. Kerchner, Dist. Atty., Mifflintown, for appellee.

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

Author: Dithrich

[ 172 Pa. Super. Page 355]

DITHRICH, Judge.

This matter is now before the Court on appeal by appellants from the discharge of a rule to show cause why a writ of coram nobis should not issue. Upon presentation of the petition for the writ, J. Howard Neely, Esquire, was appointed to represent appellants. An answer was filed by the District Attorney of Juniata

[ 172 Pa. Super. Page 356]

County and the matter came on to be heard upon petition and answer. After argument and the filing of briefs, but without the taking of testimony, Troutman, P. J., denied the prayer of the petition and discharged the rule. By agreement of counsel the cases were heard together and will be disposed of in this one opinion.

Both appellants entered pleas of guilty to two indictments, each charging the crime of burglary, and were sentenced on each indictment to serve a term of not less than ten nor more than twenty years in the Western State Penitentiary, to be computed from October 3, 1947, the date of their commitment to the Juniata County Jail.

On May 17, 1949, they filed petitions for writs of habeas corpus in the Court of Common Pleas of Allegheny County at Nos. 1653 July Term, 1949, Dkt. A, and 1654 July Term, 1949, Dkt. B. Their principal allegation was that they were deprived of the right of counsel. An answer was filed by the District Attorney of Juniata County and affidavits by the former District Attorney and a State Police officer submitted, stating that defendants had been asked by the court if they had or desired counsel and that both had answered 'No' to each question. On June 3, 1949, the late Harry H. Rowand, President Judge of the Court of Common Pleas of Allegheny County, dismissed the petition and denied the writ. No appeal was taken.

In the case of Elmer Richardson, a petition for a writ of habeas corpus was filed in this Court and entered to No. 229 Miscellaneous Docket, and a rule to show cause issued. The gist of the petition was that he was illegally sentenced in the Court of Oyer and Terminer of Juniata County on two indictments that were drawn in the Court of Quarter Sessions. The answer filed by the District Attorney clearly shows that

[ 172 Pa. Super. Page 357]

    the indictment at No. 1 October Sessions, 1947, was drawn in the Court of Oyer and Terminer and that the indictment at No. 3 October Sessions, 1947, while drawn in the Court of Oyer and Terminer, was inadvertently on the printed form of indictment for the Court of Quarter Sessions. The entry of a plea of guilty waived all defects in the indictment and, although the record did not show proper certification of the second indictment to the Court of Oyer and Terminer, it was at most a formal defect. Commonwealth v. Eberhardt, 164 Pa. Super. 591, 67 A.2d 613. Upon consideration of the petition, the answer thereto, and the original records, ...


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