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COMMONWEALTH EX REL. TYSON v. DAY. (07/17/56)

July 17, 1956

COMMONWEALTH EX REL. TYSON, APPELLANT,
v.
DAY.



Appeal, No. 16, Oct. T., 1956, from order of Court of Common Pleas of Northumberland County, refusing writ of Habeas Corpus, No. 389, in case of Commonwealth ex rel. Calvin Tyson v. C. D. Day, Warden, State Penitentiary, Graterford. Order affirmed.

COUNSEL

Calvin Tyson, appellant, in propria persona.

H. F. Bonno, District Attorney, for appellee.

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

Author: Rhodes

[ 181 Pa. Super. Page 260]

OPINION BY RHODES, P.J.

On November 15, 1954, relator, Calvin Tyson, presented a petition for a writ of habeas corpus to the Court of Common Pleas of Northumberland County. On the same day a rule to show cause was issued. An answer was filed by the warden of the State Penitentiary at Graterford, and a hearing was held on February 21, 1955, at which counsel appeared on behalf of the relator. It was stipulated that no factual questions were involved and that there was no reason for the appearance of relator at the hearing.

The matter was argued orally before the court at which time an amendment to relator's petition was submitted.

[ 181 Pa. Super. Page 261]

After consideration of the original petition and the amendment thereto, the court on June 16, 1955, discharged the rule to show cause and dismissed the petition, but directed that a credit of twenty days be allowed on relator's term of imprisonment for time served by him between the date of his parole in the State of Maryland and his return to the Northumberland County Jail.

Relator in his petition and amendment thereto averred that he is now confined in the State Penitentiary at Graterford under an illegal and void sentence imposed by the Court of Oyer and Terminer of Northumberland County on May 23, 1932, at No. 3, May Term, 1932; that the indictment upon which he was tried, convicted, and sentenced charged no crime; that the sentence had expired.

To the court's order of June 16, 1955, dismissing relator's petition for writ of habeas corpus, relator filed a motion to vacate, stating that there had been no adjudication of relator's averment that he had been indicted, tried, convicted, and sentenced under a statute wherein there was neither provision for nor prohibition of the crime alleged. Argument was held thereon before the court below on August 5, 1955, relator being represented by counsel. On August 22, 1955, that court filed an additional opinion refusing relator's motion to vacate its order of June 16, 1955, dismissing his petition for writ of habeas corpus. Relator appealed to this Court on September 6, 1955.

Relator and one Charles O'Neil, alias Anthony Vershinsky, alias Charles Vincent, were indicted on May 17, 1932, at No. 114, May Sessions, 1932, in the Court of Quarter Sessions of Northumberland County on three counts: First count, burglary; ...


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