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COMMONWEALTH EX REL. CHATARY v. NAILON. (03/17/64)

March 17, 1964

COMMONWEALTH EX REL. CHATARY, APPELLANT,
v.
NAILON.



Appeal, No. 259, Oct. T., 1963, from order of Court of Common Pleas of Montgomery County, No. 63-1447, in case of Commonwealth ex rel. Michael Chatary v. Warden Nailon. Order affirmed.

COUNSEL

David C. Harrison, with him Mitchell A. Kramer and Matthew Kramer, for appellant.

William C. Cahall, III, Assistant District Attorney, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Rhodes

[ 202 Pa. Super. Page 452]

OPINION BY RHODES, P.J.

This is an appeal from an order of the Court of Common Pleas of Montgomery County dismissing relator's petition for a writ of habeas corpus after hearing.

The question reised is whether habeas corpus may be used to contradict the record and establish that the crime was not committed in the county where the conviction took place. See Com. ex rel. Ritchey v. McHugh, 189 Pa. Superior Ct. 515, 151 A.2d 659.

Relator was indicted on two bills, No. 318 and No. 319, November Term, 1960, in the Courts of Quarter Sessions and Oyer and Terminer of Montgomery County, charging burglary, larceny, and receiving stolen

[ 202 Pa. Super. Page 453]

    goods. Having waived a jury trial, he was tried before Judge HONEYMAN, and was found guilty of receiving stolen goods on each bill of indictment. In his petition relator alleges that the evidence at the trial showed several burglaries in Montogmery County between December 2 and 7, 1960. On December 10, 1960, relator's automobile was searched by the police, in Philadelphia, who found certain articles therein which were identified as having been taken in the Montgomery County burglaries. Relator contended that these articles were placed in the trunk of his car, in Philadelphia, without his knowledge or consent.

Following the trial, relator filed a motion in arrest of judgment wherein he raised, for the first time, the question of jurisdiction in Montgomery County. The Court of Quarter Sessions dismissed the motion, and cited Com. ex rel. Koffel v. Myers, 184 Pa. Superior Ct. 270, 275, 133 A.2d 570, 573, for the principle that "the conviction of a defendant is conclusive that the crime was committed where laid in the indictment, for a verdict on guilt includes such finding."

On October 23, 1961, relator was sentenced to imprisonment in the Montgomery County Prison for not less than two and a half years nor more than five years. A subsequent appeal to this Court was quashed for failure to perfect the appeal within the period of forty-five ...


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