Louis T. Lepera, in pro. per.
Armand Della Porta, Asst. Dist. Atty., Michael von Moschzisker, First Asst. Dist. Atty., and Richardson Dilworth, Dist. Atty., Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Gunther, and Wright, JJ.
[ 173 Pa. Super. Page 628]
On July 20, 1939 relator, Louis T. Lepera, was tried and convicted in Philadelphia County under two indictments charging him with assault and battery, aggravated assault and battery, assault and battery with intent to ravish, attempted rape and rape on two sisters. Consecutive sentences of 5 to 10 years in the Eastern State Penitentiary were imposed.
On July 14, 1949 relator was paroled. On April 23, 1952 he was given a preliminary hearing before a judge of the Muncipal Court of Philadelphia County,
[ 173 Pa. Super. Page 629]
sitting as a committing magistrate, on charges of assault and battery, assault and battery with intent to ravish and rape on one Sally Davis. He was held for court and was tried by a judge without a jury on two bills of indictment, Nos. 1129 and 1130 April Sessions, 1952. Bill No. 1129 charged assault and battery, aggravated assault and battery, assault and battery with intent to ravish and rape. Bill No. 1130 charged relator with incestuous adultery, the aforementioned Sally Davis being the daughter of his wife by her prior marriage. Relator was represented by counsel.
The court sustained a demurrer to Bill No. 1129 but found Lepera guilty of incestuous adultery and he was returned to Eastern State Penitentiary as a parole violator and with a new commitment of 2 to 5 years in the same institution.
On October 8, 1952 the instant petition for a writ of habeas corpus was filed. Relator alleges that he was 'arrested on or about April 16, 1952, and held without bail on charges of Rape, Adultery, Fornication and Bastardy', and that thereafter, 'on or about April 23, 1952, Relator was tried before a duly authorized Magistrate for the said offenses, and said Magistrate thereupon dismissed said charges pursuant to law'. 'Subsequently', the petition continues, 'Relator appeared before the Honorable John Davis and was sentenced to a term of not less than two nor more than five years on a single charge of incestuous adultery, which had been previously dismissed * * *.' It follows, the relator concludes, that 'the Court had no jurisdiction to proceed against him in imposing a sentence upon a charge previously dismissed by a Magistrate as such action constituted a failure of due process within the purview of autrefois convict'.
On October 8, 1952 a rule was granted on the District Attorney of Philadelphia ...