Commonwealth ex rel. Burge v. Ashe

• Decision Date: 12 January 1951
• Citation: 77 A.2d 725,168 Pa.Super. 271
• Parties: COMMONWEALTH ex rel. BURGE v. ASHE, Warden.
• Court: Pennsylvania Superior Court

77 A.2d 725

168 Pa.Super. 271

COMMONWEALTH ex rel. BURGE v. ASHE, Warden.

Superior Court of Pennsylvania.

January 12, 1951

Application for Allocatur Denied March 16, 1951.

The Commonwealth of Pennsylvania on the relation of Raymond Burge filed a petition against Stanley P. Ashe, Warden, Western State Penitentiary, for a writ of habeas corpus. The Court of Common Pleas of Allegheny County, No. 224, April Term, 1950 Frank P. Patterson, P. J., refused the petition, and relator appealed. The Superior Court, No. 141, April Term, 1950, Per Curiam, held, inter alia, that complaint that relator was arrested without a warrant, and that relator's home was searched without a warrant, was not reviewable by way of habeas corpus after trial and conviction of relator.

Order affirmed.

Sufficiency of indictment could not be reviewed in habeas corpus proceedings.

Raymond Burge, pro se.

Joseph L. Lewis, Asst. Dist. Atty., W. R. Dennison, Jr., Asst. Dist Atty., Washington, for appellee.

Before HIRT, Acting P. J., and RENO, DITHRICH, ROSS, ARNOLD and GUNTHER, JJ.

PER CURIAM.

Relator presented his petition for writ of habeas corpus to the Court of Common Pleas of Allegheny County on January 9, 1950. A rule to show cause why a writ of habeas corpus should not issue was granted, and answers were filed by the warden of the Western State Penitentiary, the District Attorney of Allegheny County, and the District Attorney of Washington County. The writ was refused on the petition and answers. Relator has appealed.

Relator was tried and convicted on May 9, 1946, in the Court of Oyer and Terminer of Washington County on bill of indictment No. 222, May Sessions, 1946, charging (1) statutory rape, and (2) sodomy; and on bill of indictment No 222 1/2, May Sessions, 1946, charging larceny. True bills had been found by the grand jury. On the same day, after the verdicts of guilty by the jury, relator signed a plea of guilty to bill of indictment No. 220, May Sessions, 1946, charging assault with intent to ravish, and to bill of indictment No. 221, May Sessions, 1946, charging assault with intent to ravish. True bills had been found by the grand jury and relator signed pleas of guilty to the respective indictments. At the trial on bills Nos. 222 and 222 1/2, May Sessions, 1946, relator was represented by counsel, and at the time of the entry of the pleas on bills Nos. 220 and 221, May Sessions, 1946, his counsel appeared with him. On May 17, 1946, relator, with his counsel, appeared before Honorable Carl E. Gibson, President Judge of the Courts of Washington County, for sentence. After affording an opportunity to relator and his counsel to make a statement, the court imposed the following sentences: On bill No. 222 1/2, May Sessions, 1946 (larceny), a term of not less than one year nor more than two years in the Western State Penitentiary, effective April 20, 1946; on bill No. 222, May Sessions, 1946 (first count) statutory rape, a term of not less than seven and one-half years nor more than fifteen years in the Western State Penitentiary commencing at the expiration of the sentence on bill No. 222 1/2, May Sessions, 1946, and (second count) sodomy, a term of not less than five years nor more than ten years commencing at the expiration of the sentence on the first count; on bill No. 220, May Sessions, 1946, assault with intent to ravish, a term of not less than two and one-half years nor more than five years commencing at the expiration of sentence imposed on the second count in bill No. 222, May Sessions, 1946; on bill No. 221, May Sessions, 1946, assault with intent to ravish, a term of not less than two and one-half years nor more than five years commencing at the expiration of sentence imposed on bill No. 220, May Sessions, 1946. As compiled and entered the minimum of the sentences would be not less than eighteen and one-half years and the maximum not more than thirty-seven years. See Com. ex rel. McDevitt v. Burke, 166 Pa.Super. 194, 195, 70 A.2d 663.

It was not necessary that relator be produced in court to be heard on his petition for writ of habeas corpus. No factual issues requiring the taking of testimony were involved. Relator's averment that he did not endorse the bills of indictment Nos. 220 and 221, May Sessions, 1946, is immaterial as he signed a plea of guilty on separate forms to each bill. Relator's further complaint that he was arrested without a warrant, and that his home was searched without a search warrant is not...