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COMMONWEALTH EX REL. DAVIS v. BALDI. (07/17/56)

July 17, 1956

COMMONWEALTH EX REL. DAVIS, APPELLANT,
v.
BALDI.



Appeal, No. 295, Oct. T., 1955, from order of Court of Common Pleas of Chester County, March T., 1955, No. 27, in case of Commonwealth ex rel. Oliver Garfield Davis v. Dr. F. S. Baldi, Warden. Order affirmed.

COUNSEL

Oliver Garfield Davis, appellant, in propria persona.

John E. Stively, District Attorney, Frank P. Lawley, Jr., Deputy Attorney General, and Herbert B. Cohen, Attorney General, for appellee.

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

Author: Ervin

[ 181 Pa. Super. Page 252]

OPINION BY ERVIN, J.

Relator, a prisoner in the Western State Penitentiary of Pennsylvania, filed a petition for a writ of habeas corpus on March 12, 1955. A rule to show cause was granted and the court below appointed counsel to represent the relator. After an answer was filed the district attorney and counsel for the relator stipulated that the rule be made absolute and the writ was issued. After hearing on June 6, 1955, at which relator testified at length before the court in banc, he was remanded to the custody of the warden of the penitentiary. This appeal followed.

On November 16, 1954 relator waived the finding of true bills and through his counsel entered pleas of

[ 181 Pa. Super. Page 253]

    guilty to indictments charging him with false pretense and forgery. On December 10, 1954 sentence was suspended on the charge of false pretense but on the bill charging forgery relator was sentenced to pay a fine of $300.00 and costs of prosecution and to undergo imprisonment in the penitentiary for a period of not less than two years nor more than six years and to make restitution. Sentence was to run from October 12, 1954, the date of relator's commitment.

Relator questions here the right of the court below to hold the hearing on his petition for writ of habeas corpus because there was no return by the warden of the penitentiary to the writ of habeas corpus together with a copy of the commitment. However, the record of the proceedings on this petition definitely established there was an actual commitment, the relator, who requested the writ, was in court and was identified by the deputy sheriff as being the man he delivered to the Eastern Correctional Diagnostic and Classification Center for the Eastern District of Pennsylvania. Also admitted and identified as part of relator's criminal record was a paper showing the transfer of relator to the Western State Penitentiary at Rockview. Under the circumstances the failure of the warden on whom the writ was served to make a return together with a copy of the commitment furnishes no basis for relator to question the right of the court below to hold the hearing on his petition.

Relator's petition for writ of habeas corpus presented to the court below contained numerous irrelevant and immaterial averments relating partly to alleged errors prior to the entry of his pleas and sentence and partly to other proceedings prior to the first information lodged against him ...


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