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COMMONWEALTH EX REL. HERNANDEZ v. PRICE. (04/23/56)

April 23, 1956

COMMONWEALTH EX REL. HERNANDEZ, APPELLANT,
v.
PRICE.



Appeal, No. 81, March T., 1956, from order of Court of Common Pleas of Allegheny County, Jan. T., 1956, No. 2611, in case of Commonwealth ex rel. Henry Hernandez, also known as Chico Hernandez v. Grant S. Price, Warden. Appeal dismissed; reargument refused April 30, 1956.

COUNSEL

Samuel J. Goldstein, for appellant.

William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for appellee.

Before Stern, C.j., Jones, Bell, Musmanno and Arnold, JJ.

Author: Jones

[ 385 Pa. Page 45]

OPINION BY MR. JUSTICE JONES

This appeal is from an order of the Court of Common Pleas of Allegheny County denying the relator's petition for a writ of habeas corpus. As the petitioner sought release from restraint imposed pursuant to an extradition warrant, the appeal was properly taken to this court: Section 7, Act of May 25, 1951, P.L. 415, 12 PS ยงยง 1901, 1907. See also Commonwealth ex rel. Henderson v. Baldi, 372 Pa. 463, 465, 93 A.2d 458.

On December 8, 1954, a warrant issued out of the Municipal Court of Cook County, Chicago, Illinois, for the arrest of relator on a charge of "child abandonment",

[ 385 Pa. Page 46]

    admittedly a felony in Illinois. Relator was apprehended and taken into custody by the police of Pittsburgh, in May, 1955. The Cook County authorities duly sought his extradition. As a part of the application for extradition, Chabela Hernandez, relator's wife, made an affidavit on May 17, 1955, before a judge of the Municipal Court in Chicago that relator's abandonment of his child had taken place in Chicago on or about September 13, 1952.

On May 20, 1955, the Governor of Illinois issued his requisition to the Governor of Pennsylvania requesting the return of relator who, as stated in the requisition, was charged with having committed the crime of child abandonment in Illinois and having thereafter fled the justice of that State. The Governor of Pennsylvania issued his warrant on May 24, 1955, for the arrest of relator (then in the custody of the Pittsburgh police) and for his delivery to the authorized agent of Illinois for extradition.

On June 9, 1955, relator filed his petition in the Court of Common Pleas a Allegheny County for a writ of habeas corpus on the bald and unsupported averment that he was illegally arrested and detained. At the hearing on the petition on June 27, 1955, the Commonwealth introduced in evidence, without objection from relator's counsel, all of the documents above mentioned except the requisition from the Governor of Illinois. Also, Chabela Hernandez testified at the hearing that relator was present in Illinois on the date the alleged crime was committed. At the conclusion of the hearing the petition was dismissed. No appeal from the order of dismissal was taken within the ...


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