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COMMONWEALTH EX REL. HARRIS v. DOWNEY. (03/22/61)

March 22, 1961

COMMONWEALTH EX REL. HARRIS, APPELLANT,
v.
DOWNEY.



Appeals, No. 157, Oct. T., 1961, from judgment of Court of Quarter Sessions of Schuylkill County, March T., 1960, No. 269, and No. 138, Oct. T., 1961, from order of Court of Common Pleas of Schuylkill County, March T., 1961, No. 73, in cases of Commonwealth v. Delbert Harris, and Commonwealth ex rel. Delbert Harris v. John Downey, Warden. Appeal from sentence of contempt certified to Supreme Court; appeal from refusal of court below to grant writ of habeas corpus reversed by prior order and prisoner discharged; petition to Superior Court to assume original jurisdiction and grant writ of habeas corpus refused; order of supersedeas to remain in effect unless and until Supreme Court directs otherwise.

COUNSEL

Donald D. Dolbin, with him Burke, Bowe, Dolbin & Heffner, for appellant.

Calvin J. Friedberg, Assistant District Attorney, with him Robert M. Harris, District Attorney, for appellee.

John T. Pfeiffer, III, with him John B. McGurl, for trial judge.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Woodside

[ 195 Pa. Super. Page 11]

OPINION BY WOODSIDE, J.

Delbert Harris pleaded guilty to charges of selling liquor and malt beverages on January 2, 1960, without first procuring a license, contrary to the provisions of Article 4, § 491, subsection (1) and § 492, subsection (2) of the Liquor Code of April 12, 1951, P.L. 90, 47 P.S. §§ 4-491 and 4-492.

The Liquor Code, supra, provides in § 494(a) of Article 4, as amended, 47 P.S. § 4-494(a), as follows: "Any person who shall violate any of the provisions of this article, except as otherwise specifically provided, shall be guilty of a misdemeanor and, upon conviction thereof, shall be sentenced to pay a fine of not less than one hundred dollars ( $100), nor more than five hundred dollars ( $500), and on failure to pay such fine, to imprisonment for not less than one month, nor more than three months, and for any subsequent offense, shall be sentenced to pay a fine not less than three hundred dollars ( $300), nor more than five hundred dollars ( $500), and to undergo imprisonment for a period not less than three months, nor more than one year."

Although this was Harris's first offense, Judge DALTON, sitting in the Court of Quarter Sessions of Schuylkill County, sentenced the defendant on September 15, 1960 as follows: "First Court - Sale of Malt beverages for consumption on premises, sold without a license - Fine of $300.00, to be paid immediately, and in default of the payment, three months in the Schuylkill County Prison. Second Court - Sale of Liquor without a License - Fine of $500.00. Imprisonment in Sch. Co. Prison for a period of one year. Payment of costs on both counts."

The illegality of the sentence was called to the judge's attention by the counsel for the prisoner and by the district attorney a few days after its imposition.Subsequently, a petition for a writ of habeas

[ 195 Pa. Super. Page 12]

    corpus was filed, but dismissed by the Court of Common Pleas of Schuylkill County as premature because Harris had not paid the fine and costs on the second count and was then legally detained. (At that time, he had paid the fine and costs on the first count). On January 10, 1961, more than three months after the fine and costs were paid on the first count and after the expiration of the maximum jail sentence which the court could have imposed on the second count, Harris again asked for a writ of habeas corpus. A prisoner illegally detained under a sentence so obviously illegal should have been discharged forthwith, but the court after holding the petition for approximately a month, on February 6, 1961, refused to discharge the prisoner, and dismissed the petition on the ground that it did not set forth the citation of the statute authorizing the court to act upon it. After an appeal from that order was taken to this Court, and the argument advanced to March 6, Judge DALTON, upon petition of the warden of the county prison, noted that the sentence of September 15, 1960 did not "fully accord with the provision of the Liquor Code of 1951, P.L. 90, Section 404," and by order of February 28, 1961, amended the sentence imposed on the second court as follows: "Fine $500 and in default of payment three (3) months imprisonment in the Schuylkill County Prison and payment of costs."

But the prisoner was not discharged. On the Bill of Indictment charging the liquor violation appears the following: "DALTON, J., #4 February 15, 1961 (Contempt of Court Charge.) Defendant pay the costs of prosecution, pay fine of $150.00, undergo imprisonment in the Schuylkill County Prison for a period of Eight (8) Months."

This sentence was imposed in a contempt action, which kept the illegally sentenced prisoner in jail. It was a unique procedure. If at any time in the history

[ 195 Pa. Super. Page 13]

    of American Jurisprudence there was a similar action brought against a prisoner for answers made to the court at time of sentence, it has not been called to our attention, and we have no knowledge of it.

Eight days after the imposition of the illegal sentence, Judge DALTON filed a "specification of charges in re contempt of court" setting forth that the prisoner had pleaded guilty, and that "prior to passing of sentence, the defendant was interrogated in open court, by the Court," and "made answers to the questions of the Court as follows:

"(a) Defendant stated that he had come from Pittsburgh to Pottsville last November for the purpose of giving one Murray a blood transfusion.

"(b) Defendant stated that his employment in the Murray house of prostitution was solely in the capacity of a clerk at $35.00 per week in Murray's confectionery store on the first floor of said premises whereas the Liquor ...


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