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COMMONWEALTH EX REL. KOENIG v. CAVELL. (06/11/57)

June 11, 1957

COMMONWEALTH EX REL. KOENIG, APPELLANT,
v.
CAVELL.



Appeal, No. 26, April T., 1957, from order of Court of Common Pleas of Washington County, Nov. T., 1956, No. 2, in case of Commonwealth of Pennsylvania ex rel. Daniel Koenig v. Angelo C. Cavell, Warden, Western Penitentiary of Pennsylvania. Order affirmed.

COUNSEL

Daniel Koenig, appellant, in propria persona.

Michael A. Hanna, District Attorney, with him P. Vincent Marino, First Assistant District Attorney, for appellee.

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

Author: Wright

[ 183 Pa. Super. Page 446]

OPINION BY WRIGHT, J.

On August 27, 1956, Daniel Koenig, an inmate of the Western Penitentiary, petitioned the Court of Common Pleas of Washington County for a writ of habeas corpus. A rule was granted to show cause why the writ should not issue. Answers were filed by the district attorney and the warden of the penitentiary. On October 9, 1956, the rule was discharged and the writ refused. This appeal followed.

On October 27, 1955, a masked man carrying a pellet pistol entered the Evans Studio in the City of Washington, bound the receptionist with adhesive tape, and took from the cash register the sum of $240.00. The only clue to the robber's identity was a slip issued by a cleaning establishment which had dropped from his person. As a result of a commendable police investigation, Koenig was apprehended and charged with the crime of robbery while armed, a violation of Section

[ 183 Pa. Super. Page 447705]

of The Penal Code.*fn1 The case was returned to the Court of Quarter Sessions of Washington County at No. 182 May Sessions 1956, and a true bill was found by the grand jury on April 30, 1956. Koenig was arraigned on May 9, 1956, at which time he entered a plea of not guilty. The bill was thereupon certified to the Court of Oyer and Terminer at No. 11 May Term 1956. The case was called for trial on May 16, 1956, Koenig being represented by able counsel. The prosecuting attorney informed the court that the Commonwealth was ready to proceed. Koenig's attorney thereupon made the following statement: "May it please the court, at this time the defendant, Daniel Koenig, wishes to withdraw his plea of not guilty and enter a plea of guilty to the charge of robbery. The defendant stands before the bar." The trial judge then proceeded to hear testimony from the police officer, the receptionist, and the owner of the studio. Following a plea for leniency by Koenig's attorney, sentence was imposed.*fn2 The stenographic record of the proceedings covers ten pages.

Appellant first contends that the indictment was invalid. He argues that the bill was endorsed "simple" robbery, not "armed" robbery. This contention is in direct conflict with the record. Section 704 of The Penal Code (18 P.S. 4704) interdicts "robbery by assault and force", and Section 705 (18 P.S. 4705) "robbery while armed". Our examination of the original indictment discloses that it is endorsed "Robbery 18 P.S. 4705", and such is the charge laid in the body

[ 183 Pa. Super. Page 448]

    of the bill. It should perhaps be noted that, even though there had been a variance between the endorsement and the actual charge, the caption is not part of the indictment. See Commonwealth ex rel. Robinson v. Baldi, 175 Pa. Superior Ct. 550, 106 A.2d 689. The cases relied upon by appellant are entirely inapposite. In Commonwealth ex rel. Torrey v. Ketner, 92 Pa. 372, it was held that an indictment charging embezzlement from a national bank did not charge a crime ...


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