Appeal, No. 95, Jan. T., 1954, from order of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1953, No. 8095, in case of Commonwealth of Pennsylvania ex rel. George Lane v. F.S. Baldi, Superintendent, Philadelphia County Prison. Order affirmed; reargument refused January 20, 1955.
J. R. Siegert, with him Joseph Patrick Gorham, for appellant.
Victor Wright, with him Armand Della Porta, Assistant District Attorney, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
Relator's petition for a writ of habeas corpus re extradition proceedings could be dismissed because of petitioner's failure to comply with Rule 45 of this Court relating to the service of copies of brief and record. Since, however, the appeal relates to the extradition of relator to a sister state, and the single question is one of identity, we have concluded to pass upon the merits and have examined the original record with the notes of testimony. We agree with the hearing judge that relator was sufficiently identified by two witnesses.
The denial of relator's petition by the court below is affirmed on the opinion of Judge BOK.
DISSENTING OPINION BY MR. JUSTICE MUSMANNO:
When another State demands extradition of a person living within the boundaries of our Commonwealth, the very least which should be required of the demanding State is unqualified identification of the arrested person as the fleeing culprit. A study of the transcript of the testimony taken in this case does not convince me that the identifying testimony was of such a character as to justify the forcible removal from Pennsylvania of one who is here minding his own affairs.
The defendant George Lane was charged in Virginia with felonious assault and battery. Charles B. English, sheriff of Westmoreland County, Virginia, who came to Pennsylvania to take the defendant to Virginia, was asked: "Do you know this man to be the George Lane wanted in the warrant from the Governor of Virginia?" He replied: "I can't say." He was then asked: "You don't know whether he is?" He repeated: "I can't say."
William Thomas Kelly, who was the alleged victim of the assault and battery (cutting), testified: "Q. Did you file a complaint against George Lane? A. No, sir. Q. Were you a witness against George Lane in Virginia? A. Yes, sir. Q. And what happened? Why were you a witness? A. (No response.) Q. Did anything happen to you in connection with George Lane? A. No. Q. Go on, explain. No what? A. (No response.) BY THE COURT: Q. What is your name? A. William Kelly. Q. All right, Kelly, look at this man ...