Commonwealth Ex Rel. Lerner v. Smith

• Court: Superior Court of Pennsylvania
• Citation: 30 A.2d 347,151 Pa.Super. 265
• Decision Date: 28 January 1943
• Parties: COMMONWEALTH EX REL. LERNER v. SMITH, WARDEN.

151 Pa.Super. 265
30 A.2d 347

COMMONWEALTH EX REL. LERNER
v.
SMITH, WARDEN.

Superior Court of Pennsylvania.

Jan. 28, 1943.

Appeal No. 223, Miscellaneous Docket No. 5.

Habeas corpus proceeding by the Commonwealth, on the relation of Jack Lerner, against Herbert Smith, Warden, Eastern State Penitentiary, to obtain relator's release from imprisonment.

Writ refused.

30 A.2d 348

Herbert L. Maris, of Philadelphia, for appellant.

Franklin E. Barr, Asst. Dist. Atty., and John H. Maurer, Dist. Atty., both of Philadelphia, for appellee.

Before KELLER, P. J., and BALDRIGE, RHODES, HIRT, and KENWORTHEY, JJ.

RHODES, Judge.

A petition for writ of habeas corpus was presented to this court by the relator Jack Lerner. Rule was granted upon the Attorney General of the Commonwealth of Pennsylvania, the District Attorney of the County of Philadelphia, and the Warden of the Eastern State Penitentiary to show cause why a writ of habeas corpus should not issue. Answers were filed by the district attorney and the warden. Written briefs were presented and the matter was orally argued.

The questions involved arise out of the following facts which are not in dispute: On July 20, 1934, relator, in the Court of Quarter Sessions of Philadelphia County, pleaded nolo contendere to the following bills of indictment: No. 139, December Sessions, 1933-Sodomy; No. 140, December Sessions, 1933-Sodomy; No. 692, July Sessions, 1934-Solicitation to commit sodomy; No. 693, July Sessions, 1934-Assault and battery, aggravated assault and battery, and assault and battery with intent to ravish.

On bill No. 139, he was sentenced as of July 20, 1934, to the Eastern State Penitentiary for a period of not less than four years nor more than eight years in separate or solitary confinement. He did not receive sentence on the other bills.

On October 20, 1938, relator was released on parole after serving four years and three months of his sentence. On January 30, 1939, while on parole, a true bill of indictment, No. 995, January Sessions, 1939, in the Court of Quarter Sessions of Philadelphia County, was found against him in which he was charged with solicitation to commit sodomy. On February 1, 1939, a jury returned a verdict of guilty on this bill, but a new trial was granted. On February 8, 1939, relator was brought to trial under the same indictment and a verdict of guilty was again returned. On the same day he was sentenced to undergo imprisonment in separate or solitary confinement in the Eastern State Penitentiary for a period of not less than two and a half years nor more than five years, to be computed from January 24, 1939, the date of his commitment.

Relator avers in his petition that on July 2, 1942, he made application for parole to the Pennsylvania Board of Parole on the sentence imposed on bill No. 995, January Sessions, 1939, on the ground that two and one-half years of the sentence had expired on July 24, 1941. He further avers that service of the unexpired term of the original sentence, three years and nine months, was completed on October 24, 1942, and that his application was denied by the board for the reason that sentence imposed on bill No. 995, January Sessions, 1939, did not run concurrently with service of the remainder of the original sentence imposed on bill No. 139, December Sessions, 1933.

The contention of relator in brief is that the Act of May 28, 1937, P.L. 1036, 19 P.S. § 894 et seq., repealed or modified section 10 of the Act of June 19, 1911, P.L. 1055, as last amended by the Act of June 22, 1931, P.L. 862, § 1, 61 P.S. § 305; and that sentence on bill No. 995 ran concurrently with the unexpired term of the original sentence.

We shall not recite again the legislative history of section 10 of the Act of 1911 and the amendments thereto, 61 P.S. § 305, which relate to service of the unexpired original term after conviction for a crime committed during parole. See Narcise v. Eastern State Penitentiary, 137 Pa. Super. 394, 399, 400, 9 A.2d 165; Com. ex rel. Wall v. Smith et al., 345 Pa. 512, 29 A.2d 912. It suffices to say, as finally amended by the Act of June 22, 1931, P.L. 862, section 10 of the Act of 1911, 61 P.S. § 305, provides that: (1) Where a convict

30 A.2d 349

is legally sentenced for a crime committed during his parole to the penitentiary from which he has been released on parole, the unexpired portion of his original sentence is to be served before he commences to serve the sentence imposed for the crime committed while on parole; (2) where a convict is convicted of a crime committed while on parole and sentenced to any place of confinement other than the penitentiary from which he was released on parole, he serves in the penitentiary, or in any other institution to which he may be legally transferred, the unexpired portion of the original sentence after the expiration of the new sentence; (3) where a convict while on parole commits a crime, punishable by imprisonment, and is convicted but not sentenced, he is compelled, by detainer and remand as for an escape, to serve the unexpired portion of the original sentence in the penitentiary from which he was released on parole or any other institution to which he may be legally transferred. See Com. ex rel. Dorillo v. Smith, 144 Pa. Super. 265, 269, 19 A.2d 757; Com. ex rel. Rossey v. Ashe, 137 Pa.Super. 525, 10 A.2d 95; Com. ex rel. Meinzer v. Smith, 118 Pa. Super. 250, 252, 180 A. 179; Com. ex rel. Kent v. Smith, 323 Pa. 89, 186 A. 812. Section 10 of the Act of 1911, as amended, 61 P.S. § 305, is printed in the margin. ¹

If the Act of May 28, 1937, P.L. 1036, 19 P.S. §§ 894, 895, 896, did not repeal or modify section 10 of the Act of 1911, as amended, 61 P.S. § 305, relator, since he was committed after conviction to the same penitentiary from which he was released on parole, was required to serve the unexpired portion of the sentence on bill No. 139, December Sessions, 1933, before serving his sentence on bill No. 995, January Sessions, 1939. It is conceded that section 10 of the Act of 1911, as amended, 61 P.S. § 305, mandatorily provides that the two sentences cannot run concurrently. See Com. ex rel. Wall v. Smith et al., supra; Com. ex rel. Stauffer v. Ashe, 141 Pa. Super. 407, 15 A.2d 409.

The Act of 1937, supra, is an act “regulating and prescribing the computation and running of sentences for criminal offenses.” It reads as follows:

“Section 1 [§ 894]. From and after the passage of this act, all sentences for...