Com. ex rel. Tyson v. Day
| Decision Date | 17 July 1956 |
| Citation | 181 Pa.Super. 259,124 A.2d 426 |
| Parties | COMMONWEALTH ex rel. Calvin TYSON, Appellant, v. Charles G. DAY, Warden, State Penitentiary at Graterford. |
| Court | Pennsylvania Superior Court |
Calvin Tyson, in pro. per.
No appearance for appellee.
Before RHODES, P. J., and HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN and CARR, JJ.
On November 15, 1954, relator, Calvin Tyson, presented a petition for a writ of habeas corpus to the Court of Common Pleas of Northumberland County. On the same day a rule to show cause was issued. An answer was filed by the warden of the State Penitentiary at Graterford, and a hearing was held on February 21, 1955, at which counsel appeared on behalf of the relator. It was stipulated that no factual questions were involved and that there was no reason for the appearance of relator at the hearing.
The matter was argued orally before the court at which time an amendment to relator's petition was submitted.
After consideration of the original petition and the amendment thereto, the court on June 16, 1955, discharged the rule to show cause and dismissed the petition, but directed that a credit of twenty days be allowed on relator's term of imprisonment for time served by him between the date of his parole in the State of Maryland and his return to the Morthumberland County Jail.
Relator in his petition and amendment thereto averred that he is now confined in the State Penitentiary at Graterford under an illegal and void sentence imposed by the Court of Oyer and Terminer of Northumberland County on May 23, 1932, at No. 3, May Term, 1932; that the indictment upon which he was tried, convicted, and sentenced charged no crime; that the sentence had expired.
To the court's order of June 16, 1955, dismissing relator's petition for writ of habeas corpus, relator filed a motion to vacate, stating that there had been no adjudication of relator's averment that he had been indicted, tried, convicted, and sentenced under a statute wherein there was neither provision for nor prohibition of the crime alleged. Argument was held thereon before the court below on August 5, 1955, relator being represented by counsel. On August 22, 1955, that court filed an additional opinion refusing relator's motion to vacate its order of June 16, 1955, dismissing his petition for writ of habeas corpus. Relator appealed to this court on September 6, 1955.
Relator and one Charles O'Neil, alias Anthony Vershinsky, alias Charles Vincent, were indicted on May 17, 1932, at No. 114, May Sessions, 1932, in the Court of Quarter Sessions of Northumberland County on three counts: First count, burglary; second count, felonious entry in the nighttime without breaking, with intent to commit a felony; third count, receiving stolen goods. To the indictment defendant O'Neil (Vincent) entered a plea of guilty, and the relator herein entered a plea of not guilty. Relator was tried by a jury at No. 3, May Term, 1932, in the Court of Oyer and Terminer of Northumberland County, which returned a general verdict of guilty. On May 23, 1932, relator was sentenced to pay the costs of prosecution, a fine in the sum of $500 and undergo imprisonment in the Eastern State Penitentiary for a period of not less than five years nor more than ten years, the sentence to be computed from January 18, 1932.
On June 1, 1932, while waiting to be transferred to the Eastern State Penitentiary, relator and his codefendant escaped from the Northumberland County Jail. On December 5, 1953, as the result of a detainer lodged against him, relator was returned to the Northumberland County Jail, and transferred to the Eastern State Penitentiary on January 19, 1954. Since May 13, 1938, he had been confined in the Maryland State Penitentiary, where he was serving a sentence on a charge of murder. From the date of his escape from the Northumberland County Jail to his return thereto on December 5, 1953, relator did not serve any of the sentence imposed by the Court of Oyer and Terminer of Northumberland County on May 23, 1932. On March 29, 1954, relator was transferred to the State Penitentiary at Graterford for further service of the sentence imposed on May 23, 1932.
Relator's first complaint is that the sentence was illegal and void. The same indictment which relator now contends does not support the sentence which he is now serving was considered by this Court in Com. ex rel. Vincent v. Smith, 132 Pa.Super. 469, 1 A.2d 838. In imposing sentence on relator the court of oyer and terminer did not sentence relator on any particular count. As we said in the Vincent case, the sentence is legally sustainable under the second count; a sentence is legal if it is warranted by any count in the indictment. It is well settled that, if there is one count in the indictment which will sustain the sentence, it cannot be reversed. Com. v. Bradley, 16 Pa.Super. 561, 563; Com. v. Stanley, 39 Pa.Super. 402, 404. Relator's extended argument that the indictment did not state any offense under an applicable statute is devoid of merit. The jury rendered a general verdict of guilty and the court imposed a general sentence. The second count charges an offense under section 2 of the Act of April 22, 1863, P.L. 531, as amended by the Act of March 13, 1901, P.L. 49, § 1, 18 P.S. § 3042. 1 These acts were superseded by the Act of June 24, 1939, P.L. 872, § 901, 18 P.S. § 4091. See Com. ex rel. Wolcott v. Burke, 173 Pa.Super. 473, 476, 477, 98 A.2d 206; Com. v. Hellner, 160 Pa.Super. 158, 160, 50 A.2d 512.
Relator's contention--that the felonious entry count merged with the burglary count, and that as the verdict of guilty of burglary was illegal under the existing law the relator was therefore guilty of no crime--is basically erroneous. A merger cannot occur unless one crime is necessarily involved in the other. Com. ex rel. Sawchak v. Ashe, 169 Pa.Super. 529, 536, 83 A.2d 497. The offense of felonious entry under ordinary circumstances would merge with the offense of burglary. Com. v. Bailey & Ford, 92 Pa.Super. 581, 585. This is true whether the jury brings in a specific verdict of guilty on each charge, as in the Bailey case, or a general verdict of guilty. In the latter event the accused may be sentenced only for the greater offense. Com. v. Doran, 145 Pa.Super....
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