Appeal, No. 2, May T., 1953, from order of Court of Common Pleas of Fulton County, Jan. T., 1952, No. 50, in case of Commonwealth of Pennsylvania ex rel. Walter Lee Bishop v. Dr. John W. Claudy, Warden, Western State Penitentiary, et al. Order affirmed.
Thomas M. Hyndman, Jr., for appellant.
John W. Mentzer, District Attorney, with him Frank P. Lawley, Jr., Assistant Deputy Attorney General and Robert E. Woodside, Attorney General, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The Court of Common Pleas of Fulton County dismissed relator's petition for a writ of habeas corpus after consideration of the petition and the answers thereto filed by the district attorney and the warden of the western penitentiary. The only question raised on this appeal is whether or not the learned court below was required to hold a hearing before disposing of the matter.
There can be no doubt that prior to the Act of May 25, 1951, P.L. 415, 12 PS 1901 et seq., it was proper for a court to dismiss a petition for writ of habeas corpus without a hearing if the petition and answers raised no material or substantial question of fact: Commonwealth ex rel. De Poe v. Ashe, 167 Pa. Superior Ct. 23, 74 A.2d 767. As Chief Justice MOSCHZISKER said in Commonwealth v. Curry, 285 Pa. 289, 132 A. 370, at
p. 299: "The points of law raised by the pleadings are usually decided on the documentary evidence in the record...." The Superior Court has approved the same practice since the passage of the Act of 1951, supra: Commonwealth ex rel. Chambers v. Claudy, 171 Pa. Superior Ct. 115, 90 A.2d 383; Commonwealth ex rel. Reynolds v. Burke, 173 Pa. Superior Ct. 146, 96 A.2d 193.
The careful and comprehensive opinion of the learned court below clearly demonstrates that no issue of fact which required a hearing was raised by the present petition. Relator, Walter Bishop, was convicted of second degree murder on October 7, 1950, for the death of his brother, Lester Bishop. Evidence at the trial showed that there had been a quarrel between the brothers in which the relator Walter had been severely beaten, that Lester had proceeded to the front of the house and was damaging relator's automobile with a plank, that relator appeared with a loaded shotgun, fired both barrels, and fatally wounded his brother.
The first allegation of the petition which was argued to this Court is that the witnesses for the Commonwealth were rehearsed, intimidated, and fearful of the police. This is obviously no more than a conclusion, and the only facts alleged in support of it are contained in the affidavit of relator's father, Charles Bishop, which was appended to the petition. Taken most favorably to relator, this affidavit establishes only that Charles Bishop made a statement to the police shortly after the shooting which he later regretted having made, that he fled to the State of Maryland to avoid testifying at his son's trial, and had to be brought back by ...