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COMMONWEALTH EX REL. SHULTZ v. MYERS. (12/28/56)

December 28, 1956

COMMONWEALTH EX REL. SHULTZ, APPELLANT,
v.
MYERS.



Appeal, No. 8, March T., 1957, from order of Court of Common Pleas of York County, Aug. T., 1956, No. 25, in case of Commonwealth of Pennsylvania ex rel. Albert W. Shultz v. David A. Myers, Warden. Order affirmed.

COUNSEL

Albert W. Shultz, appellant, in propria persona.

John E. Erb, Assistant District Attorney, with him George W. Atkins, District Attorney, for appellee.

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

Author: Ervin

[ 182 Pa. Super. Page 432]

OPINION BY ERVIN, J.

This is an appeal by Albert W. Shultz from an order of the Court of Common Pleas of York County discharging the rule to show cause and dismissing the petition for a writ of habeas corpus filed by the relator and Charles J. Murphy who are confined in the State

[ 182 Pa. Super. Page 433]

Penitentiary at Graterford. Relator was sentenced by the Court of Quarter Sessions of York County to undergo imprisonment for a period of not less than one and one-half nor more than three years after his conviction by a jury on the charge of possession of burglary tools. No motion for new trial was filed nor appeal taken from the judgment and sentence of the trial court.

Relator contends the court below erred in denying him the opportunity to appear, testify and produce witnesses at the hearing held on the rule to show cause why the writ of habeas corpus should not be allowed. This contention is without merit. Relator was not ordered to be present at the hearing but oral argument was presented in his behalf by court appointed counsel. No factual issues requiring determination by the court were raised by relator's petition, thus the presentation of testimony was unnecessary. Com. ex rel. Gaurich v. Keenan, 181 Pa. Superior Ct. 619, 124 A.2d 144; Com. ex rel. Luzzi v. Tees, 176 Pa. Superior Ct. 528, 108 A.2d 921. Where there are no factual issues for determination by the court below no hearing is necessary, and it is proper for the court below to dispose of the matter, as it did in the instant proceeding, on the petition and answer and the original trial record, after oral argument. Com. ex rel. Haines v. Burke, 173 Pa. Superior Ct. 477, 98 A.2d 208.

Relator's contention that the bill of indictment was invalid is equally without merit. We find no defects in the indictment. Moreover, it is well settled that by pleading to the indictment and going to trial all defects, if any, in the form of the indictment were waived. Com. ex rel. Ketter v. Day, 181 Pa. Superior Ct. 271, 124 A.2d 163. In any event any question concerning the validity of the indictment, even when meritorious, cannot be raised for the first time in a habeas corpus

[ 182 Pa. Super. Page 434]

    proceeding. Com. ex rel. Scasscrra v. Keenan, 175 Pa. Superior ...


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