Appeal from order of Court of Common Pleas No. 2 of Philadelphia County, June T., 1963, No. 6442, in case of Commonwealth ex rel. James Whiting v. David N. Myers, Superintendent.
James Whiting, appellant, in propria persona.
Benjamin H. Renshaw, Jr. and Joseph M. Smith, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen.
On October 14, 1948, James Whiting plead guilty generally to an indictment charging the crime of murder. After a hearing before the court, he was found guilty of murder in the second degree and sentenced to an indeterminate term of imprisonment, the maximum being fixed at twelve years and the minimum at six years. After his release from confinement under the sentence above imposed, he was again indicted for murder, allegedly committed on November 12, 1962. To this indictment, he entered a general plea of guilty on June 7, 1963. After a hearing before the court, he was adjudged guilty of murder in the second degree and sentenced to life imprisonment under the provisions of § 701 of the Act of June 24, 1939, P. L. 872, 18 P.S. § 4701. No appeal from the judgment of sentence was entered.
Subsequently, an action in habeas corpus was instituted, which the lower court dismissed without hearing. The present appeal followed.
Appellant contends that his liberty has been deprived by virtue of an "ex post facto" law as proscribed in Article I, § 9 of the Constitution of the United States in that § 701 of The Penal Code, supra, was amended by the Act of December 1, 1959, P. L. 1621, § 1, and that, therefore, his convictions were under separate statutes and the penalty cannot validly have a cumulative effect. The fact is that the portion of § 701 of the Act of 1939 dealing with the penalties for second degree murder was in no way changed by the 1959 amendment thereto. Thus, both sentences for second degree murder were imposed upon petitioner by virtue of the Act of 1939, supra.