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COMMONWEALTH EX REL. BUTLER v. BANMILLER. (09/16/59)

September 16, 1959

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



Appeal, No. 258, Oct. T., 1959, from order of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1958, No. 3279, in case of Commonwealth of Pennsylvania ex rel. Lonnie Butler v. William J. Banmiller, Warden. Order affirmed.

COUNSEL

Lonnie Butler, appellant, in propria persona.

Juanita Kidd Stout, Assistant District Attorney, with her Victor H. Blanc, District Attorney, for appellee.

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

Author: Gunther

[ 190 Pa. Super. Page 475]

OPINION BY GUNTHER, J.

Relator, Lonnie Butler, has appealed the dismissal of his petition for writ of habeas corpus without a hearing alleging that he was deprived of due process of law by reason of certain alleged trial error and insufficiency of the evidence to convict him.

[ 190 Pa. Super. Page 476]

On March 26 and 27, 1958, relator, together with three others, was tried on charges of the commission of a crime of violence while armed with a firearm, aggravated robbery and with conspiracy. Each defendant was represented by a different attorney. The defendant, Saunders, was granted a severance and found not guilty. Both he and Campbell, who previously had entered a plea of guilty, testified at relator's trial. Saunders testified that while he and Campbell were riding in relator's car driven by relator, Campbell mentioned holding up a certain taproom. Upon hearing this, Saunders requested to be let out of the car, which request was granted. Two hours later, he was in the bar when it was robbed by Campbell.Campbell testified that he left Butler's car a block and a half from the taproom, went in and robbed it of over one hundred dollars, returned to the car where he again met relator who drove him home. Campbell gave relator $31.00 of the loot and told him to say nothing about the matter.

Relator did not take the stand and, upon conclusion of the Commonwealth's case, the trial judge found relator guilty. He was sentenced on the charge of aggravated robbery to a term of not less than ten nor more than twenty years in the Eastern State Penitentiary. No appeal was taken from this sentence.

Subsequently, relator filed a petition for writ of habeas corpus, alleging that the evidence was insufficient to sustain his conviction. This petition was dismissed without a hearing.

It is apparent that relator's complaint concerns the quantity and quality of the evidence produced to sustain his conviction. He does not challenge the sentence. If a petitioner is legally detained in prison, he is not entitled to a writ of habeas corpus. Before he is entitled to the writ, he must show ...


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