Commonwealth ex rel. Firmstone v. Myers

• Decision Date: 11 June 1957
• Docket Number: 3212
• Citation: 132 A.2d 707,184 Pa.Super. 1
• Parties: COMMONWEALTH of Pennsylvania ex rel. Nathaniel FIRMSTONE v. David N. MYERS, Warden, State Penitentiary, Graterford, Pa.
• Court: Pennsylvania Superior Court

132 A.2d 707

184 Pa.Super. 1

COMMONWEALTH of Pennsylvania ex rel. Nathaniel FIRMSTONE v. David N. MYERS, Warden, State Penitentiary, Graterford, Pa.

No. 3212

Superior Court of Pennsylvania

June 11, 1957

Submitted March 22, 1957

Appeal, No. 140, Oct. T., 1957, from order of Court of Quarter Sessions of Lycoming County, Sept. Sessions, 1955 No. 85, in case of Commonwealth ex rel. Nathaniel Firmstone v. David N. Myers, Warden. Order affirmed.

Proceeding upon application for writ of coram nobis.

Order entered refusing writ; opinion by GREEVY, J. Relator appealed.

Order affirmed.

Nathaniel Firmstone, appellant, in propria persona.

George M. Hess, Jr., District Attorney, for appellee.

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

OPINION

HIRT, J.

The relator has appealed from the denial of his application for a writ of error coram nobis. Judge GREEVY, in the opinion accompanying the order of the lower court in this case stated that this is the third time the petitioner has made application for a writ of coram nobis, and that four applications for writs of habeas corpus which had been filed by him had also been denied. Relator is now serving a life sentence imposed on him on May 21, 1952, as a fourth offender, under the Act of June 24, 1939, P.L. 872, § 1108(b), 18 PS § 5108.

Relator now complains that when he pleaded guilty to the charges of burglary in 1942 he was under the impression that he was 18 years of age; and that he has since learned that he then was only 17 years old. It is his present contention that since he was of juvenile court age when the 1942 crimes were committed these three convictions cannot be cumulated with subsequent convictions of felonies to make him a fourth offender within the purview of the Act.

By § 14 of the Act of June 2, 1933, P.L. 1433, the juvenile court was given exclusive jurisdiction in a case affecting a delinquent child under 16 years of age. But by the amendment of the section by the Act of June 15, 1939, P.L. 394, 11 PS § 256 if the child is between 16 and 18 years of age the court "may, at its discretion" but is not obliged to "transfer such cases to the juvenile court." Accordingly the Court of Quarter Sessions of Lycoming County had jurisdiction of the three offenses of which relator was convicted in 1942, even if his present averment as to his then age be accepted as true. Cf. Trignani's Case, 150 Pa.Super. 491, 28 A.2d 702. The writ of error coram nobis therefore is not available to him. The facts alleged, extrinsic of the record if known, would not have changed the result. Commonwealth v. Harris, 351 Pa 325, 327, 41 A.2d 688; Commonwealth v. Ondrejcak, ...