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COMMONWEALTH EX REL. DANDY v. BANMILLER. (11/09/59)

November 9, 1959

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



Appeal, No. 232, Jan. T., 1959, from order of Court of Common Pleas No. 5 of Philadelphia County, March T., 1959, No. 216, in case of Commonwealth of Pennsylvania ex rel. Sebron Dandy v. William J. Banmiller, Warden. Order affirmed.*fn* Habeas corpus. Order entered dismissing petition, order by DOTY, J. Relator appealed.

COUNSEL

Sebron Dandy, appellant, in propria persona.

Juanita Kidd Stout, Assistant District Attorney, Paul M. Chalfin, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Jones

[ 397 Pa. Page 313]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

This is an appeal from an order of the Court of Common Pleas No. 5 of Philadelphia County dismissing appellant's petition for a writ of habeas corpus. A previous petition for a writ of habeas corpus was dismissed by the Court of Common Pleas No. 1 of Philadelphia County and that dismissal was affirmed by this Court in Com. ex rel. Dandy v. Banmiller, 394 Pa. 294, 147 A.2d 372.

Appellant was arrested on May 26, 1957 and later indicted for murder and manslaughter in connection with the shooting of his common law wife. Over six months later, - on December 4, 1957, - the appellant, represented by court-appointed counsel, entered a plea of guilty to murder generally. After a hearing before a court en banc, consisting of three judges, he was found guilty of murder in the first degree and sentenced to imprisonment for life which sentence he is now serving in the Eastern State Penitentiary. No

[ 397 Pa. Page 314]

    motion for a new trial was made nor was any appeal taken from the judgment of sentence.

In the instant petition the appellant claims that a written confession introduced at trial was obtained by unauthorized methods, that he was not given a proper hearing before a magistrate and that, not having waived in writing a trial by jury, he was entitled to a trial by a jury rather than by the three judge court.

The allegation that appellant's confession was improperly obtained is repetitious of the same allegation in appellant's prior petition which was dismissed for sound reason: Com. ex rel. Colwell v. Myers, 182 Pa. Superior Ct. 256, 258, 126 A.2d 513; Com. ex rel. Campbell v. Claudy, 171 Pa. Superior Ct. 282, 89 A.2d 895, cert. den. 344 U.S. 869; Com. ex rel. Hendrickson v. Hendrick, 181 Pa. Superior Ct. 45, 122 A.2d 88.

Appellant does not set forth wherein there was any impropriety in the magistrate's hearing, but, even if such impropriety had been spelled out, such question is not a proper subject for a petition for a writ of post trial habeas corpus: Com. ex rel. Ketter v. Day, 181 Pa. Superior Ct. 271, 273, 124 A.2d ...


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