Commonwealth ex rel. Bandi v. Ashe

• Decision Date: 17 April 1951
• Citation: Commonwealth ex rel. Bandi v. Ashe, 80 A.2d 62, 367 Pa. 234 (Pa. 1951)
• Parties: COMMONWEALTH ex rel. BANDI v. ASHE.
• Court: Pennsylvania Supreme Court

80 A.2d 62

367 Pa. 234

COMMONWEALTH ex rel. BANDI v. ASHE.

Supreme Court of Pennsylvania.

April 17, 1951

The Commonwealth of Pennsylvania, on the relation of Albert Bandi, brought habeas corpus proceedings against Stanley P Ashe, Warden, Western State Penitentiary, Pittsburgh Pennsylvania.The Court of Common Pleas of Allegheny County at No. 81, April Term, 1950, Patterson, P. J., rendered a judgment denying the writ, and the relator appealed.The Supreme Court, Per Curiam, at No. 61, March Term, 1951 affirmed the order on the opinion of Patterson, P. J holding that fact that indictment, which charged relator with murder, gave date of homicide as September 15, which was the date when the deceased died, rather than September 11 when relator stabbed the deceased, was not a fatal error.

Affirmed.

Habeas corpus proceedings cannot be substituted for appeal.

Edward T. Tait and Kountz, Fry & Meyer, all of Pittsburgh, for appellant.

Owen B. McManus, Asst. Dist. Atty. Pittsburgh, for appellee.

Before DREW, C. J., and STERN, STEARNE, JONES, BELL, LADNER and CHIDSEY, JJ.

OPINION

PATTERSON, P. J.

This matter comes before the court on petition of the relator who is an inmate of the Western State Penitentiary, having been sentenced by the Court of Oyer & Terminer of Allegheny County on a charge of murder in the second degree.The petition was received through the mail.It was ordered filed and a rule was granted on Stanley P. Ashe, Warden of the Western State Penitentiary, and the District Attorney of Allegheny County, to show cause why the writ should not issue.Answers have been made thereto.

From the record it appears that relator was sentenced on January 28, 1947, at No. 92 December Sessions, 1946 to a term of imprisonment of not less than eight nor more than sixteen years, effective from September 15, 1946(the date of relator's arrest).On the same date, a nolle pros was entered at No. 93 December Sessions, 1946, by reason of a plea of guilty of the defendant at No. 92 December Sessions, 1946, charging murder, and involving the same set of facts.Said sentence was duly signed and endorsed by the Court.

The relator summarizes his complaints as follows:

‘ 1.Your petitioner claims the indictments were improperly drawn up.

‘ 2.Your petitioner did not endorse the indictments Nos. 92 and 93, listed in Paragraphs No. 1 and 2 of this petition.

‘ 3.Your petitioner claims there was no waiver endorsed or presented for your petitioner's signature.

‘ 4.Your petitioner claims he was denied a fair trial.

‘ 5.Your petitioner claims the arresting officer had no written warrant.

‘ 6.Your petitioner claims there was no hearing before an Alderman or a Justice of the Peace.

‘ 7.Your petitioner claims it was illegal for the defense attorney to stop the trial, and enter a plea of guilty.’

The District Attorney of Allegheny County has filed a full and complete answer to the petition, and has submitted therewith the original records in this case.From the record it appears that the indictments are in proper form and are duly signed by the foreman of the Grand Jury and the District Attorney.Relator further states in the body of his petition that the crime was committed on September 12, 1946 and that the indictment gives the date of the crime as September 15, 1946, at which time he was in the custody of the police.The history of the crime shows that the actual stabbing (or ‘ cutting’ as it is termed by the relator) occurred on September 11, 1946, but that the victim did not die until September 15, 1946, on which date relator was arrested and charged with murder.We do not believe that this difference in dates is a fatal error in the indictment.Section 11 of the Act of March 31, 1860, P.L. 427, 19 P.S. § 431, provides: ‘ Every objection to any indictment for any formal defect, apparent on the face thereof, shall be taken by demurrer, or on motion to quash such indictment, before the jury shall be sworn, and not afterward; and every court, before whom any such objection shall be taken for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended in such particular, by the clerk or other officer of the court, and thereupon the trial shall proceed as if no such defect appeared.’

In the case of Commonwealth v. Grove,91 Pa.Super. 553, it was said: ‘ The Commonwealth is not bound by the date laid in the bill of indictment but can show any date within the statutory period and prior to the finding of the indictment, except in cases where time is of the essence in the offense.’See alsoCommonwealth v. Tassone,246 Pa. 543, at page 549, 92 A. 713, at page 715, in which the court said: ‘ A mis-statement in an indictment of the date of the commission of a crime is a mere formal defect, if it be shown on the trial that the offense charged had been committed.’

We believe that the date set forth in the indictment in the instant case is within the statutory period.Certainly there could have been no doubt in the mind...