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COMMONWEALTH EX REL. YOUNG v. JOHNSTON. (03/27/56)

March 27, 1956

COMMONWEALTH EX REL. YOUNG, APPELLANT,
v.
JOHNSTON.



Appeal, No. 178, April T., 1955, from order of Court of Common Pleas of Allegheny County, April T., 1955, No. 1696, in case of Commonwealth ex rel. Charles W. Young v. Frank C. Johnston, Warden, Western State Penitentiary. Order affirmed.

COUNSEL

Charles W. Young, appellant, in propria persona.

Albert A. Fiok, Assistant District Attorney, and James F. Malone, Jr., District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Gunther

[ 180 Pa. Super. Page 632]

OPINION BY GUNTHER, J.

Appellant, Charles Young, filed a petition for writ of habeas corpus in which he attacks the jurisdiction of the Court of Oyer and Terminer of Allegheny County. The court below dismissed the petition and discharged the rule to show cause. From that order we have this appeal.

In reviewing the history of the case, we have the following facts: in 1949, appellant entered a plea of guilty to the commission of a number of armed robberies and to the crime of larceny and rape. The court imposed sentences at Nos. 111, 112, 114 and 128 June Session 1949 (O & T) to run consecutively. At No. 111 June Session, 1949 - for a period of 3 to 6 years to be computed from May 20, 1949; at No. 112 June Session, 1949 - for a period of 3 to 6 years, to begin and take effect after the expiration of the sentence at No. 111 June Session, 1949; at No. 114 June Session, 1949 - for a period of 3 to 6 years, to begin and take effect after the expiration of the sentence at No. 112 June Session 1949; at No. 128 June Session, 1949 - for a period of 3 to 7 years, to begin and take effect at the expiration of the sentence at No. 114 June Session, 1949. The petition is based on the fact that at the time the crimes were committed, appellant was under the age of 18. Appellant filed several other petitions based on the same grounds in 1952 and 1954.

On July 21, 1952, he filed a petition for a writ of coram nobis which was dismissed. At No. 3423 January Term, 1954, a habeas corpus petition was filed. After hearing, the court vacated the sentence at No.

[ 180 Pa. Super. Page 633112]

June Session, 1949, on the ground that at the time sentence was imposed upon this indictment, the appellant was under the age of 16 and therefore not under the jurisdiction of the court of oyer and terminer. The last petition, however, was dismissed because the appellant admitted then, and now admits, that at the time of committing the offenses for which he is now incarcerated, he was over 16.

The same question was raised at No. 3423 January Term, 1954 as is raised in this appeal.

In habeas corpus proceedings the remedy of the relator is to appeal from an order of the lower court and not to file a new petition. See Commonwealth ex rel. Allen v. Claudy, 170 Pa. Superior Ct. 499, 87 A.2d 74; Commonwealth ex rel. Krannacher v. Ashe, 142 Pa. Super. Ct. 162, 15 A.2d 855; ...


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