Appeal from order of Court of Common Pleas of Allegheny County, July T., 1967, No. 763, in case of Commonwealth ex rel. Samuel Miller et al. v. William Robinson, Warden.
Allen N. Brunwasser, for appellant.
Edwin J. Martin, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for appellee.
Ervin, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Wright, J., absent).
[ 211 Pa. Super. Page 268]
We affirm the denial by the court below of the motion by James D. Carter to vacate the order of that court dismissing charges against the relators, Samuel Miller and Jo-Ann Miller and discharging them on May 4, 1967 by virtue of a writ of habeas corpus.
We find that James D. Carter, the private prosecutor, was not present at the hearing on the writ of habeas corpus, and was neither subpoenaed nor served with prior notice thereof. Accordingly, the costs imposed against him by the court below in said proceedings are remitted and placed on the county.
Order affirmed in part and reversed in part.