G. W. Wilde, Pittsburgh, for appellant.
Albert A. Fiok, Asst. Dist. Atty., and James F. Malone, Jr., Dist. Atty., Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Gunther, JJ.
[ 172 Pa. Super. Page 576]
Relator, James Colburne Howard,*fn1 has appealed from the dismissal of his petition for writ of habeas corpus by the Court of Common Pleas of Allegheny County.
On April 3, 1929, relator entered pleas of guilty in the Court of Oyer and Terminer of Beaver County to two bills of indictment -- No. 4, June Term, 1929, charging armed robbery, and No. 10, June Term, 1929, charging felonious assault and battery. On the same day he was sentenced to the Western State Penitentiary on bill No. 4 for a term of not less than five years nor more than ten years, and on bill No. 10 for a term of not less than three and a half years nor more than seven years. It was directed that the sentences be served concurrently.
On April 20, 1929, within the term, relator was brought before the court and the sentences were modified to the extent that they be served consecutively, the sentence imposed on bill No. 10 to be served after expiration of the sentence imposed on bill No. 4. See Com. ex rel. Holly v. Ashe, 368 Pa. 211, 217, 82 A.2d 244.
On March 16, 1938, relator was paroled on the first sentence (bill No. 4), effective April 2, 1938, and the
[ 172 Pa. Super. Page 577]
minimum of the sentence imposed on bill No. 10 was commuted from three and one-half years to one day, expiring April 3, 1938. He was then released on parole.
On February 8, 1939, relator, together with two other individuals, was indicted for armed robbery at No. 77, February Sessions, 1939, and listed for trial in the Court of Oyer and Terminer of Allegheny County. He was thereafter extradited from Maryland to answer this charge. On June 5, 1939, after his return to this Commonwealth, he was indicted on a charge of felonious assault and battery at No. 24, June Sessions, 1939. He was tried subsequently and convicted on both indictments. On June 23, 1939, he was sentenced to the Western State Penitentiary for a term of not less than three and one-half years nor more than seven years on bill No. 24, which sentence was to begin to be served at the expiration of the remainder of the original sentences imposed by the Court of Oyer and Terminer of Beaver County. See Com. ex rel. Carmelo v. Burke, 168 Pa. Super. 109, 78 A.2d 20. On bill No. 77 he was sentenced to the same institution for a term of not less than five years nor more than ten years, beginning at expiration of the sentence imposed on bill No. 24.
In accordance with the Act of June 25, 1937, P.L. 2093, 19 P.S. § 897, the sentences imposed by the Court of Oyer and Terminer of Allegheny County on bills No. 24, June Sessions, 1939, and No. 77, February Sessions, 1939, were compiled and entered as eight and one-half years to seventeen years by the officials of the Western State Penitentiary. It appears that on May 21, 1946, relator completed service of the maximum terms under bills Nos. 4 and 10, ...