Com. ex rel. Cox v. Banmiller

• Citation: 195 Pa.Super. 218,171 A.2d 544
• Parties: COMMONWEALTH of Pennsylvania ex rel. Clinton COX, Appellant, v. William J. BANMILLER, Warden, Eastern State Penitentiary.
• Decision Date: 15 June 1961
• Court: Pennsylvania Superior Court

171 A.2d 544

195 Pa.Super. 218

COMMONWEALTH of Pennsylvania ex rel. Clinton COX, Appellant, v. William J. BANMILLER, Warden, Eastern State Penitentiary.

Superior Court of Pennsylvania.

June 15, 1961.

Clinton Cox, in pro. per.

Joseph M. Smith and Arlen Specter, Asst. Dist. Attys., Paul M Chalfin, First Asst. Dist. Atty., James C. Crumlish, Jr. Dist. Atty., Philadelphia, for appellee.

Before RHODES, P. J., and ERVIN, WRIGHT, WOODSIDE, WATKINS MONTGOMERY and FLOOD, JJ.

RHODES President Judge.

Relator has appealed from the order of Judge Carroll entered September 26, 1960, dismissing relator's petition for writ of habeas corpus.

Appellant was convicted of burglary and sentenced by Judge Edwin O. Lewis to serve a term of not less than one year nor more than five years in the Eastern State Penitentiary, now the State Correctional Institution at Philadelphia, to be computed from July 26, 1950. He was paroled on July 31, 1952, the balance of his sentence then remaining being two years, eleven months, and twenty-four days. On May 6, 1955, two months and twenty-five days prior to the expiration of the maximum sentence from which he had been paroled, appellant was arrested and charged with burglary, larceny, and receiving stolen goods. He was subsequently tried, convicted of larceny only, and sentenced by Judge Webb of the Fourth Judicial District, specially presiding, to serve a term of not less than one year nor more than five years in the Eastern State Penitentiary.

This is the third habeas corpus petition filed by appellant since his original sentence. A petition was denied by Judge Kelley who ruled that petitioner was properly compelled to serve the unexpired portion of the sentence from which he was paroled in addition to the new sentence imposed by Judge Webb Com. ex rel. Carmelo v. Burke, 168 Pa.Super. 109, 78 A.2d 20; Com. ex rel. Gallagher v. Martin, 183 Pa.Super. 540, 132 A.2d 706; Com. ex rel. Haun v. Cavell, 190 Pa.Super. 346, 352, 154 A.2d 257.

The original commitment issued pursuant to the sentence given by Judge Webb stated on its face that the sentence imposed was to be computed from May 11, 1955. A 'corrected' commitment, issued July 9, 1958, stated that the sentence was to be computed from May 7, 1955, and that the conviction before Judge Webb was on all three charges of burglary, larceny, and receiving stolen goods, when in fact the conviction was on the larceny charge only.

A...