Com. ex rel. Ketter v. Day

• Decision Date: 17 July 1956
• Citation: 181 Pa.Super. 271,124 A.2d 163
• Parties: COMMONWEALTH of Pennsylvania ex rel. James KETTER, Appellant, v. Charles G. DAY, Warden, State Penitentiary at Graterford, Pennsylvania.
• Court: Pennsylvania Superior Court

Page 163

124 A.2d 163

181 Pa.Super. 271

COMMONWEALTH of Pennsylvania ex rel. James KETTER, Appellant, v. Charles G. DAY, Warden, State Penitentiary at Graterford Pennsylvania.

Superior Court of Pennsylvania.

July 17, 1956.

Application for Allocatur Denied Oct. 2, 1956.

James Ketter, in pro. per.

William Claney Smith, Asst. Dist. Atty., Edward C. Boyle, Dist. Atty., Pittsburgh, for appellee.

Before RHODES, P. J., and HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN and CARR, JJ.

CARR, Judge.

James Ketter, a prisoner in the State Penitentiary at Graterford, appeals from an order of the Court of Common Pleas of Allegheny County refusing a writ of habeas corpus for his discharge from custody. He attacks the validity of his conviction and sentence by the Court of Oyer and Terminer of that county on the grounds that he was not given a preliminary hearing before a magistrate, that he was improperly indicted jointly with an unidentified 'John Doe', that one of the witnesses against him testified falsely, and that certain other evidence was inadmissible.

In appears from the record exhibited in answer to a rule to show cause why the writ should not be issued that on April 26, 1952 an information was made against the relator and one John Doe for armed robbery and a warrant issued for their arrest, but neither of them could then be found; on June 3, 1952, the two were indicted by the grand jury; on November 26, 1954 the relator was apprehended as a fugitive at Knoxville, Tennessee, and returned to Pittsburgh for trial; on February 8, 1955 he pleaded not guilty to the indictment; on February 8 and 9, 1955 he was tried before a jury and found guilty, having been defended by an attorney appointed by the court, and upon his conviction was sentenced to imprisonment in a state institution for a term of from four to eight years, sent to the Western Correctional Diagnostic and Classification Center, and from there was subsequently transferred to the penitentiary where he is now confined.

We have repeatedly pointed out that questions of the sufficiency or regularity of proceedings prior to indictment cannot be raised by a petition for a writ of habeas corpus. Commonwealth ex rel. Geisel v. Ashe, 165 Pa.Super. 41, 68 A.2d 360; Commonwealth ex rel. Scasserra v. Maroney, 179 Pa.Super. 150, 115 A.2d 912. It is equally well settled that by pleading to the indictment and going to trial all defects, if any, in the form of the indictment were waived. Commonwealth v. Lingle, 120 Pa.Super. 434, 182 A. 802. Nor...