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COMMONWEALTH EX REL. MCCURDY v. BURKE (07/13/54)

July 13, 1954

COMMONWEALTH EX REL. MCCURDY
v.
BURKE



COUNSEL

W. Glenn George, Philadelphia, for appellant.

Daniel E. Teeter, Dist. Atty., Gettysburg, Frank P. Lawley, Deputy Atty. Gen., Frank F. Truscott, Atty. Gen., for appellee.

Before Rhodes, P. J., and Ross, Gunther, Wright and Ervin, JJ.

Author: Rhodes

[ 175 Pa. Super. Page 483]

RHODES, President Judge.

On August 26, 1952, relator, after trial by jury, was found guilty on a bill of indictment in the Court of Oyer and Terminer of Adams County, at No. 7, August Term, 1952, charging rape, incestuous adultery, and

[ 175 Pa. Super. Page 484]

    contributing to the delinquency of a minor,*fn1 and on August 30, 1952, he was sentenced to the Eastern State Penitentiary for a term of not less than three and one-half years nor more than seven years on the count charging rape. Sentences on the remaining counts of bill No. 7 were suspended. The effective date of the sentence imposed was June 28, 1952.

Being confined in the Eastern State Penitentiary, relator, on May 5, 1953, filed a petition for writ of habeas corpus in the Court of Common Pleas of Adams County. A rule to show cause was granted and answer filed by the Warden of the Eastern State Penitentiary. An answer was filed by the District Attorney of Adams County and the Attorney General of the Commonwealth. The District Attorney and the Attorney General also filed a motion to discharge the rule and dismiss the petition on the ground that the petition was insufficient in law.

After argument before the court on the petition and answers, motion to dismiss, and the original record, the motion to dismiss was granted on May 29, 1953, by President Judge Sheely. Relator was represented by court-appointed counsel.

In granting the motion to dismiss, Judge Sheely granted leave to relator to file, within thirty days, an amended petition in conformity with his opinion. On June 19, 1953, relator filed what he termed an amended petition for writ of habeas corpus, and on July 3, 1953, this petition was also dismissed. In dismissing the petition, the court said: 'Since the amended petition for a writ of habeas corpus alleges no facts which, if

[ 175 Pa. Super. Page 485]

    true, would warrant the issuance of a writ, there is no occasion to issue a ...


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