Everett E. Utterback, Richard F. Jones and Henry R. Smith, Jr., 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 Wright, JJ.
[ 173 Pa. Super. Page 338]
Relator was tried and convicted in the Court of Oyer and Terminer of Allegheny County upon three bills of indictment, which were consolidated for trial -- No. 3, June Sessions, 1944, charging rape; No. 2, June Sessions, 1944, charging robbery with aggravating circumstances; No. 9, June Sessions, 1944, charging assault and battery with intent to ravish. On June 13, 1944, he was sentenced to the Western State Penitentiary as follows: On bill No. 3 for a term of not less than seven and one-half years nor more than fifteen years; on bill No. 2 for a term of not less than five years nor more than ten years to begin and take effect at the expiration of the sentence imposed on bill No. 3; on bill No. 9 for a term of not less than two and one-half years nor more than five years to begin and take effect at the expiration of the sentence imposed on bill No. 2. On June 15, 1944, within the term, the sentence on bill No. 2 was changed to a term of not less than ten years nor more than twenty years.
On March 26, 1951, relator filed a petition for writ of habeas corpus in the Court of Common Pleas of
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Allegheny County.*fn1 In his petition he averred, inter alia, that he was not present in court during the selection and impaneling of the jury which tried and convicted him on the three bills of indictment. A rule was granted, and answers were filed by the District Attorney of Allegheny County and the warden of the penitentiary. The answer of the District Attorney sets forth that the minute book of the Court of Oyer and Terminer of Allegheny County contains the following entry with respect to each of the indictments upon which he was tried: 'And now June 12, 1944, defendant present in open court pleads non cul et de hoc. District Attorney similiter. Issue joined. Eodie a jury being called there came * * * [names of jurors] * * * impaneled and sworn * * *.' A hearing, at which relator was represented by counsel, was held and testimony was taken. Relator testified on his own behalf as did three of the jurors before whom he was tried. The failure to call the other jurors as witnesses was satisfactorily explained. On July 23, 1951, Judge O'Toole, who heard the habeas corpus proceeding, refused the petition and remanded relator. Relator appealed to this Court. Judge O'Toole died on August 3, 1951, and President Judge McNaugher thereafter filed an opinion for the court.
In November, 1951, while the appeal from the order refusing relator's petition for writ of habeas corpus was pending, relator filed a petition in the Court of Oyer and Terminer of Allegheny County at Nos. 2, 3, 9, June Sessions, 1944, praying for an amendment of the record, and wherein it was requested that there be deleted from the minute book of said court the references that the defendant was present in open court at the selection of the jury, and that there be inserted
[ 173 Pa. Super. Page 340]
in lieu thereof statements to the effect that the defendant was not present at the selection of the jury. A rule to show cause why the record should not be so amended was issued. It was stipulated that the testimony given at the hearing on the petition for writ of habeas corpus should be read into the record of the proceeding upon the rule, and that the witnesses need not again appear and testify. After argument the rule was discharged and the petition dismissed. An appeal has also been taken from this order. We shall dispose of both appeals in this opinion.
The only question argued before this Court on these appeals relates to relator-appellant's presence at the selection of the jury. The other averments in the petition for writ of habeas ...