31 A.2d 908 (Pa.Super. 1943), 5, Commonwealth ex rel. Billman v. Smith

• Docket Nº: 5, Misc. 233
• Citation: 31 A.2d 908, 152 Pa.Super. 325
• Opinion Judge: Keller, P. J.
• Party Name: Commonwealth ex rel. Billman v. Smith, Warden
• Case Date: April 30, 1943
• Court: Superior Court of Pennsylvania

Page 908

31 A.2d 908 (Pa.Super. 1943)

152 Pa.Super. 325

Commonwealth ex rel. Billman

v.

Smith, Warden

Nos. 5, Misc. 233

Superior Court of Pennsylvania

April 30, 1943

Petition for writ of habeas corpus. Original jurisdiction, in case of Commonwealth ex rel. Edward C. Billman v. Herbert Smith, Warden.

Petition denied.

OPINION

Keller, P. J.

Petitioner, Edward Billman, was jointly indicted with one Stehlik in the Court of Oyer and Terminer of Philadelphia County, to No. 1183 September Sessions 1940, for burglary. He was tried on October 3, 1940 and found guilty and was sentenced the same day to separate and solitary confinement in the Eastern State Penitentiary for

Page 909

not less than two and a half years nor more than five years. Petitioner had a criminal record, and at the time of sentence, in reply to questions of the trial judge, he stated that he had been out of the penitentiary for about a year -- since September 28, 1939 -- and still had five years "back time" to serve. [152 Pa.Super. 326] In sentencing him the trial judge said: "Do your back time and two and a half to five at the end of it."

Later in the day it developed that Billman, shortly before committing the burglary, had completed a maximum sentence of six years in the Eastern State Penitentiary, but soon thereafter had been placed on "probation", immediately following a sentence of five years in the Berks County Prison. Under the Act of June 19, 1911, P. L. 1055, sec. 10, as amended by Act of June 22, 1931, P. L. 862, as he was sentenced for burglary to a place of confinement other than the Berks County Prison, his sentence to the penitentiary had to begin at once. Accordingly, the next day, the court entered the following order: "October 4, 1940 -- Sentence as to Billman reconsidered in open court and held under advisement." A new term of court -- October Sessions 1940 -- began on October 7, 1940. On October 11, 1940, the court formally vacated the sentence imposed on October 3, and imposed on him a sentence of not less than five years nor more than ten years imprisonment in the penitentiary, to begin as of October 3, 1940.

Petitioner claims that this was illegal, and that the sentence of two and a half to...