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COMMONWEALTH EX REL. SWINGLE v. BANMILLER. (12/30/59)

December 30, 1959

COMMONWEALTH EX REL. SWINGLE
v.
BANMILLER.



Original jurisdiction, No. 310, Miscellaneous Docket No. 11, in re petition for writ of habeas corpus, in case of Commonwealth ex rel. Claude Swingle v. William J. Banmiller, Warden. Relator remanded to court below for imposition of sentence.

COUNSEL

Herbert L. Maris, with him Lawrence Goldberg, for petitioner.

Frank P. Lawley, Jr., Deputy Attorney General, with him Louis B. Nielsen, Jr., District Attorney, and Anne X. Alpern, Attorney General, for Commonwealth.

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

Author: Cohen

[ 398 Pa. Page 44]

OPINION BY MR. JUSTICE COHEN

Claude Swingle, relator, petitioned this Court for a writ of habeas corpus alleging that the life sentence which was imposed upon him after conviction of murder in the second degree in Wayne County is illegal. At the present time he is a prisoner in the State Correctional Institution at Philadelphia (Eastern State Penitentiary).

In 1921, relator was convicted of murder in the second degree in the State of New York, and was sentenced to a term of imprisonment of not less than 20 years and not exceeding life. In 1945 he was paroled

[ 398 Pa. Page 45]

    from that state to supervision in Pennsylvania. Less than five years after his parole, on June 20, 1949, after pleading guilty to murder generally, he was adjudged guilty of murder in the second degree in Wayne County, Pennsylvania.

During the proceedings before the lower court to determine guilt and penalty, a certified copy of the New York sentence was offered by the Commonwealth and without objection the same was admitted in evidence.

The Commonwealth proved relator's identity with reference to his New York conviction and, thereafter, relator admitted his prior conviction in New York of murder in the second degree.

After stating that the prior record was not considered in fixing the degree of crime, the lower court adjudged relator guilty of murder in the second degree, and, feeling bound by the provisions of section 701 of The Penal Code, Act of June 24, 1939, P.L. ...


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