Appeal, No. 263, Oct. T., 1954, from order of Court of Common Pleas of Lycoming County, Feb. T., 1954, No. 529, in case of Commonwealth of Pennsylvania ex rel. John J. Berry v. Walter Tees, Warden, Eastern State Penitentiary. Order affirmed.
John J. Berry, appellant, in propria persona.
Markin R. Knight, District Attorney, Williamsport, for appellee.
Before Rhodes, P. J., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.
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On June 7, 1944, John J. Berry pleaded guilty to a charge of robbery, and was sentenced to undergo imprisonment in the Lycoming County jail for a period of one year and six months. Later on the same
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day, this sentence was revoked,*fn1 and Berry was sentenced instead to undergo imprisonment in the Eastern State Penitentiary for an indeterminate term of eighteen months to three years, to commence at the expiration of a term which he was then serving in the Western State Penitentiary under sentence from Clinton County. On April 23, 1954, Berry petitioned the Court of Common Pleas of Lycoming County for a writ of habeas corpus. A rule to show cause was issued and counsel appointed. An answer was filed by the Acting Warden of the Penitentiary showing Berry's commitment. No answer was filed by the District Attorney. After argument, the petition was dismissed and this appeal followed.
Appellant's principal contention is that the substituted sentence which increased his punishment, and under which he is now confined, was illegally imposed. Reliance is placed upon United States v. Benz, 282 U.S. 304, 51 S. Ct. 113, which holds that, while a court may amend a sentence within the term, it has no power to increase the punishment. Also see Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872. This is unquestionably the rule in the federal courts.*fn2 The reasoning is based upon the double jeopardy provision found in the Fifth Amendment to the Constitution of the United States. Under the federal rule the punishment has been held to be the jeopardy, and any increase in the sentence is construed to subject the prisoner to further jeopardy. It is well settled, however, that this
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amendment does not apply to the states: Brantley v. Georgia, 217 U.S. 284, 30 S. Ct. 514. And see Brock v. State of North Carolina, 344 U.S. 424, 73 S. Ct. 349. It is a restriction only on the power of the federal government: Commonwealth ex rel. Garland v. Ashe, 344 Pa. 407, 26 A.2d 190. While Article I, Section 10 of our Constitution contains practically the same language*fn3 as that in the Federal Constitution, it has never received the interpretation found in the federal cases. "It is true the Supreme Court of the United States has declared that by the use of the phrase 'life or limb' in the Constitution of the United States, protection against double jeopardy is extended to all criminal offenses... This ruling is not binding upon us, because the provision in the United States Constitution is a limitation upon the powers of the federal government and is not a limitation upon the states": Commonwealth v. Simpson, 310 Pa. 380, 165 A. 498. Under our interpretation, the plea of double jeopardy is available in capital cases only: Commonwealth v. Townsend, 167 Pa. Superior Ct. 71, 74 A.2d 746.
In Pennsylvania, the power of a court over its sentences during the term*fn4 has never been seriously questioned, so long as the sentence has not been fully executed. In Commonwealth ex rel. Laughman v. Burke, 171 Pa. Superior Ct. 343, 90 A.2d 622, defendant had been sentenced to the county ...