Appeal, No. 329, Oct. T., 1957, from order of Court of Common Pleas of Delaware County, March T., 1957, No. 1995, in case of Commonwealth of Pennsylvania ex rel. Bernard Wagner v. William J. Banmiller, Warden. Order affirmed.
Bernard Wagner, appellant, in propria persona.
Jacques H. Fox, Assistant District Attorney, J. Harold Hughes, First Assistant District Attorney, and Raymond R. Start, District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, and Watkins, JJ.
[ 184 Pa. Super. Page 640]
The relator, Bernard Wagner, was convicted of assault and battery and aggravated assault and battery upon his wife. The trial was the result of two indictments, based on an alleged assault on June 5, 1952 and another on July 24, 1952. He was sentenced on September 30, 1952 to serve two terms of one and one-half years to three years each, the second sentence to begin at the expiration of the first.
He was released on parole on November 22, 1955 but on July 9, 1956 he was returned to the State Penitentiary as a technical parole violator.
This relator has filed a series of habeas corpus writs setting forth various reasons for his right to be discharged. The lower court dismissed a petition claiming that the sentence was excessive. His petition alleging that the District Attorney and Judge forced him to trial without counsel was dismissed by the lower court without hearing. This petition, on appeal to this Court, was returned for hearing in an opinion by President Judge RHODES. Com. ex rel. Wagner v. Tees, 174 Pa. Superior Ct. 475, 101 A.2d 770 (1953). After hearing in the court below it was again dismissed. Another petition alleging double jeopardy was dismissed by the lower court without hearing, and on appeal to this Court was affirmed in an opinion by Judge
[ 184 Pa. Super. Page 641]
WOODSIDE. Com. ex rel. Wagner v. Day, 178 Pa. Superior Ct. 506, 115 A.2d 404 (1955).
The present action sought a rehearing on an amended petition for a writ of habeas corpus. No answer was filed and no hearing was held and the Court dismissed the petition. From that order relator has appealed to this Court.
The petition in this case as amended was dismissed without answer or hearing. "But it would be absurd to suppose that the Legislature intended to direct the taking of testimony when there is no issue of fact to be decided or when the facts averred by relator, even if believed, are insufficient to warrant granting the writ of ...