Appeal, No. 230, Oct. T., 1955, from order of Court of Common Pleas of McKean County, Feb. T., 1955, No. 124, in case of Commonwealth of Pennsylvania ex rel. Clyde Jennings v. James F. Maroney, Acting Warden, Western State Penitentiary. Order affirmed.
Clyde Jennings, appellant, in propria persona.
C. W. Shattuck, District Attorney and Guy B. Mayo, Assistant District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.
[ 179 Pa. Super. Page 571]
This is an appeal from an order of the lower court discharging a rule for a writ of habeas corpus sought by appellant, who is now a prisoner in the Western State Penitentiary of Pennsylvania.
[ 179 Pa. Super. Page 572]
The only question presented on this appeal is whether the relator was denied his constitutional right to have compulsory process for obtaining witnesses in his favor under the sixth and fourteenth amendments to the Constitution of the United States and under sections one and nine of Article I of the Constitution of Pennsylvania.
We have read the entire record in this matter and are agreed that the order should be affirmed upon the opinion of the lower court, portions of which are as follows: "On the 23rd day of February, 1953, the case ... in which petitioner was charged with operating a motor vehicle while under the influence of intoxicating liquor, was called for hearing .... An attorney was appointed to defend the petitioner, and a plea of not guilty was entered.
"After a jury was drawn, the jury was recessed until the next morning at 10 o'clock.
"The exact time of the issuing of the subpoena for Albert O'Neil, a brother-in-law of petitioner, Clyde Jennings, whom he desired as a witness, does not appear in the record, but a statement by the attorney for the defendant ... indicates that at about a quarter to 10 on the morning of February 24, the Sheriff stated that he would endeavor to secure the presence of O'Neil as soon as possible.
"After three officers had testified on behalf of the Commonwealth, and the defendant had given his testimony, O'Neil not having been found, court was recessed until 1:30 P.M. At that time O'Neil was still not in evidence, and the court, after hearing the Commonwealth's rebuttal, recessed until 3:30 P.M., in order to give more time for the service of the subpoena upon O'Neil. At 3:30 P.M., the witness still not having ...