John E. Caputo, Ambridge, for appellant.
Clark H. Painter, Dist. Atty., Butler, Frank P. Lawley, Jr., Deputy Atty. Gen., Robert E. Woodside, Atty. Gen., for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, and Wright, JJ.
[ 173 Pa. Super. Page 412]
On January 30, 1943, the relator, then nineteen years of age, pleaded guilty in the Court of Oyer and Terminer of Butler County to an indictment charging burglary. He received a general sentence to the Pennsylvania Industrial School at Camp Hill under the provisions of section 6 of the Act of 1887, P.L. 63, as last amended by the Act of 1951, P.L. 974, 61 P.S. § 485. This statute originally applied to the institution at Huntingdon, but was made applicable to the institution at Camp Hill by the Act of 1937, P.L.1944, 61 P.S. § 545.
On August 7, 1943, on petition of the Parole Officer of Butler County, the Court of Oyer and Terminer entered an order directing that the relator 'be released and placed on probation or parole to the custody of C. D. Baker, Parole Officer of the Courts of Butler County, at such time and under such conditions as to the Superintendent of the said institution shall seem
[ 173 Pa. Super. Page 413]
right and proper'. The record does not indicate, nor is it asserted by counsel, that any action was taken pursuant to this order.
On February 15, 1944, the Pennsylvania Board of Parole granted relator a parole, effective February 25, 1944. On July 5, 1945, he was recommitted as a technical violator, having been returned June 7, 1945. On July 3, 1946, he was granted a reparole, effective July 23, 1946. On August 11, 1946, he was again returned for violation of parole (formal action to recommit him as a technical violator being taken by the Pennsylvania Board of Parole on January 7, 1947). On September 13, 1946, the Board of Trustees of the Pennsylvania Industrial School at Camp Hill requested the Department of Welfare to approve the transfer of the relator to the Western State Penitentiary. See the Act of 1887, P.L. 63, § 10, 61 P.S. § 495; the Act of 1937, P.L.1944, § 6, as amended, 61 P.S. § 545-6; and the Act of 1929, P. L. 177, § 2311, 71 P.S. § 601. On December 1, 1946, the transfer was approved by the Secretary of Welfare, following which the transfer was made. On June 3, 1948, relator was granted a parole from the penitentiary, effective June 22, 1948. On June 26, 1951, he was returned to the penitentiary as a technical violator.
On January 15, 1952, relator filed the present petition for a writ of habeas corpus in the Court of Common Pleas of Butler County. On August 29, 1952, this petition was dismissed, and relator has appealed. The conclusion of the lower court was 'that we have no jurisdiction of the matter raised by this petition. The defendant's sole remedy if he is illegally imprisoned is through an application to the parole board'. Without agreeing with this reasoning, we have concluded that relator is lawfully confined and that a hearing was unnecessary. 'But it would be absurd to suppose
[ 173 Pa. Super. Page 414]
that the Legislature intended to direct the taking of testimony when there is no issue of fact to be decided or when the facts averred by relator, even if believed, are insufficient to warrant granting the writ of habeas corpus. When the petition, answer, and original record disclose only questions of law, then, in this as in any other civil proceeding, the only hearing necessary is oral argument to ...