summarily. In our view, the defendant was entitled at least to an inquiry into the circumstances surrounding the signing of the confession, which inquiry would probably have supported the defendant's repudiation of his confession and of his guilty plea.
At any rate, we feel that there was sufficient indication to the Quarter Sessions Court that the plea resulted from a misunderstanding or misapprehension on the part of the defendant and his counsel such as to require the court to permit the change of plea
to enable a jury to pass upon the facts. The situation was not like that in United States v. Fox, 3 Cir., 130 F.2d 56, certiorari denied 1942, 317 U.S. 666, 63 S. Ct. 74, 87 L. Ed. 535, where the defendant had a full knowledge of the facts and acted under careful legal advice in choosing to plead guilty. Nor was it like that in United States v. Morin, 3 Cir., 1959, 265 F.2d 241, where the defendant did not attack the voluntariness of his guilty plea until six months after sentencing.
We hope that we are not presumptuous in saying that were we sitting as a Pennsylvania court, we would not hesitate to grant relief by way of setting aside the convictions and sentences on bills Nos. 1053 and 1091, even though the relator is properly detained by the respondent in accordance with the ten to twenty year sentence imposed on bill No. 1052. Commonwealth ex rel. Micholetti v. Ashe, 1948, 359 Pa. 542, 59 A.2d 891; Commonwealth ex rel. Brockway v. Keenan, 1955, 180 Pa.Super. 78, 118 A.2d 255; but see Commonwealth ex rel. Salerno v. Banmiller, 1959, 189 Pa.Super. 156, 149 A.2d 501.
The federal rule, however, is that habeas corpus will not lie to attack a sentence which the petitioner has not yet begun to serve. McNally v. Hill, 1934, 293 U.S. 131, 55 S. Ct. 24, 79 L. Ed. 238. See Parker v. Ellis, 1960, 362 U.S. 574, 80 S. Ct. 909, 4 L. Ed. 2d 963, and Heflin v. United States, 1959, 358 U.S. 415, 79 S. Ct. 451, 3 L. Ed. 2d 407, which indicate that a majority of the Supreme Court still subscribes to the McNally rule.
And Now, September 30, 1960, the relator's petition for a writ of habeas corpus is Denied as premature.