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COMMONWEALTH EX REL. STEPPER v. BANMILLER. (05/26/58)

May 26, 1958

COMMONWEALTH EX REL. STEPPER, APPELLANT,
v.
BANMILLER.



Appeal, No. 201, Jan. T., 1958, from order of Court of Common Pleas of Lackawanna County, Sept. T., 1957, No. 1441, in case of Commonwealth of Pennsylvania ex rel. Walter W. Stepper v. William J. Banmiller, Warden. Order affirmed.

COUNSEL

Paul Norman Gardner, for appellant.

William J. Kearney, First Assistant District Attorney, with him Carlon M. O'Malley, District Attorney, for appellee.

Before Jones, C.j., Bell, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Arnold

[ 393 Pa. Page 2]

OPINION BY MR. JUSTICE ARNOLD

Relator appeals from the order of the Court of Common Pleas of Lackawanna County dismissing his petition for a writ of habeas corpus. He is now serving a sentence of life imprisonment imposed upon him for the killing of his wife.

On January 21, 1952, the day of the killing, a warrant for his arrest was issued; and on January 23rd he waived hearing before the committing magistrate and was committed to jail. Having been thereafter indicted for murder, relator, in the presence of his able counsel, entered a plea of guilty on January 30, 1952. Because of the absence of one of the members of the court en banc, sentencing was delayed, and defendant was again brought before the court on March 4, 1952. After three days of very searching testimony, the court en banc sentenced him to life imprisonment. Of the court en banc all agreed that he was guilty of first degree murder; two of the judges fixed the penalty imposed, and the third judge declared that he would have imposed the death penalth.

Relator raises numerous questions on this appeal, all of which are without foundation or merit. The record, which we have read in its entirety, fully establishes that his guilt of murder in the first degree was proved beyond a reasonable doubt, and he is indeed fortunate that he escaped the penalty of death.

Practically all of relator's argument is directed at matters forming only the subject of appeal from the original proceedings; and, as must be recognized, habeas corpus is not a substitute for appeal: Commonwealth ex rel. Spencer v. Ashe, 364 Pa. 442, 71 A.2d

[ 393 Pa. Page 3799]

. See also Commonwealth ex rel. Kennedy v. Mingle, 388 Pa. 54, 130 A.2d 161. For that reason, those matters will not be considered in this opinion.

Relator contends that he "... was erroneously charged with an offense for which no warrant issued until several days after arrest ..." Yet, the record definitely discloses that the warrant for his arrest issued on the very day of the killing, and that he was given preliminary hearing two days later. Between the time of the issuance of the warrant and ...


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