Commonwealth ex rel. Paige v. Smith

• Decision Date: 13 April 1938
• Docket Number: 87-1938
• Citation: 130 Pa.Super. 536,198 A. 812
• Parties: Commonwealth ex rel. Paige, Appellant, v. Smith, Warden
• Court: Pennsylvania Superior Court

198 A. 812

130 Pa.Super. 536

Commonwealth ex rel. Paige, Appellant, v. Smith, Warden

No. 87-1938

Superior Court of Pennsylvania

April 13, 1938

Argued March 15, 1938

Appeal from order of Q. S., Phila. Co., Misc. Docket, 1938, in case of Commonwealth ex rel. George Paige, v. Herbert Smith Warden, Eastern State Penitentiary.

Habeas corpus proceeding.

The facts are stated in the opinion of the Superior Court.

Writ dismissed and relator remanded, opinion by McDevitt, P. J Relator appealed.

Error assigned was order discharging writ.

Order affirmed.

John Gain, with him Thomas F. Gain, for appellant.

John H Maurer, Assistant District Attorney, and Charles F. Kelley, District Attorney, for appellee, submitted a brief.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker and Rhodes, JJ.

OPINION

Keller, P. J.

The relator, George Paige, has appealed from the order of the court below discharging a writ of habeas corpus and remanding him to the custody of the warden of the Eastern State Penitentiary.

The relevant facts on which the appellant relies may be stated as follows:

On April 12, 1934 Paige pleaded guilty to an indictment for burglary, (March Term 1934, No. 1103). When brought before the court for sentence, on May 4, 1934, the day before the last day of the April 1934 Term, he stated that he had never before been in trouble except for a trifling liquor violation, and there appeared to be no record of his previous conviction or imprisonment. The presiding judge, apparently overlooking the fact that persons convicted of burglary ^[1] are specifically excepted from the probation provisions of the Act of June 19, 1911, P. L. 1055, and its amendment of May 7, 1925, P. L. 554, erroneously placed the defendant on probation for a period of ten years. Subsequently having learned that the defendant had a long criminal record in other states, the same judge ordered him brought into court on a bench warrant, and after a hearing, in the course of which Paige admitted his prior criminal record and the falsity of his statements about his prior imprisonment, on June 4, 1934, revoked the order placing him on probation and sentenced him to the Eastern State Penitentiary for a term of not less than five years nor more than ten years, to take effect as of May 4, 1934 -- a sentence admittedly within the maximum allowed by law. The sentence of June 4, 1934 was imposed after the ending of the April Term aforesaid, at which the defendant pleaded guilty and was placed on probation.

The relator claimed to be entitled to his discharge on two grounds: (1) That the placing of the defendant on probation was a sentence, and that the court had no power, after the expiration of the term, to revoke it and sentence him to the penitentiary, for any cause except the subsequent violation of the terms of his probation, pursuant to the fourth section of the Act, of which violation there was no allegation or proof. (2) That the sentence to the penitentiary was imposed in chambers and not in open court as required by law. On the oral argument, the second ground was withdrawn, because it was based on an inadvertent error of fact, and is not pressed.

The appellant's argument rests on the premise that the order of May 4, 1934 placing him on probation was a sentence. We have, however, definitely ruled to the contrary in Com. v. Fox, 69 Pa.Super. 456, 458, and held that placing the defendant on probation under the Act of 1911, supra, is not a sentence. "Reading the first, fourth and fifth sections together we think it apparent that it was not the intention of the legislature to make the order of probation a sentence or to make it a substitute for a sentence." Furthermore, as was pointed out by Judge Henderson in that case, (p. 459), the title to the said Act of 1911 -- "An Act authorizing the release on probation of certain convicts, instead of imposing sentence"; etc. [italics supplied] -- "shows that the order of probation is not a sentence. It delays the sentence and may result in the release of the defendant at the end of the probationary period but until the conduct of the defendant has been such as to harmonize with the conditions of probation the sentence is in abeyance. And on failure to perform the conditions the defendant may be sentenced as provided in the act under which the indictment was drawn." It is nowhere in the act called, or referred to as, a sentence. On the contrary, the amendment of May 7, 1925, P. L. 554, which was evidently enacted in consequence of the decision of this court in Com. v. Ciccone, 84 Pa.Super. 224, (which held that if a fine was imposed on the defendant in connection with placing him on probation, he could not be further sentenced subsequently under section 4, for violating the terms of his probation), clearly shows that neither the order placing the defendant on probation nor the condition authorized by the amendment, directing the payment of money by the defendant for the use of the county, not exceeding the fine fixed by law for conviction of the offense, as part of the terms of the probation, shall be considered a sentence. Section 1 of the Act of 1911, P. L. 1055, as amended by the Act of 1925, P. L. 554, is printed in the margin, the italics representing the changes and additions made by the amendment of 1925. ^[2] It expressly provides that where the circumstances of the case warrant it and the public good does not require the imposition of the penalty imposed by law, the court may in all cases, -- except convictions for the offenses specifically excluded from its operation, see note 1 -- "suspend the imposing of the sentence and place the defendant on probation for a definite period," etc. They are not in the alternative or disjunctive, but in the conjunctive; and whether a specific order suspending the imposing of sentence is made or not, the placing of the defendant on probation is, in effect, a suspension of the imposing of sentence.

We have ruled that an order suspending the imposing of sentence is not appealable, because not a final judgment, -- (See Com. v. Carelli, 90 Pa.Super. 416, 421, 422) -- and have quashed appeals taken from such orders: Com. v. Mellon, 81 Pa.Super. 20. This was done in recognition of the well-established rule that final judgment in a criminal case means sentence. The sentence is the judgment: Miller v. Aderhold, 288 U.S. 206, 210, 77 L.Ed. 702, 53 S.Ct. 325; Hill v. Wampler, 298 U.S. 460, 464, 80 L.Ed. 1283, 56 S.Ct. 760; Berman v. United States, 302 U.S. 211, 82 L.Ed. 204, 58 S.Ct. 164. Of course, in those jurisdictions which permit the court to suspend the execution of a sentence imposed, an appeal must be taken from the sentence, even though its execution is suspended: Berman v. United States, supra. The rule as broadly stated by us in Com. v. Mellon, supra, has been modified by our Supreme Court in Com. v. Trunk, 311 Pa. 555, 167 A. 333, where speaking through Mr. Justice Schaffer, it was said: "While it may be true generally that appeals may not be taken in criminal proceedings where judgment of sentence has not been passed, this rule should not be held one of universal application. There are instances where great injustice would thereby be done to defendants. This case is an instance. Just why the trial judge suspended sentence on certain of the indictments in view of the severe sentences which he imposed upon Rinalducci and Trunk it is difficult to understand. All of the offenses charged were part of a continuous series of events and should have been so treated in sentencing. We think there was an abuse of judicial discretion in suspending sentence on the bills upon which the court did not act. In the exercise of that broad jurisdiction conferred upon us by section 13 of the Act of May 22, 1722, 1 Smith's Laws 131, 140, and June 16, 1836, P. L. 784, 17 PS section 41 (Com. v. Jones, 303 Pa. 551, 154 A. 480; Stone v. Phila., 302 Pa. 340, 153 A. 550; Corbin et al. v. George, 308 Pa. 201, 162 A. 459), we sustain the assignments of error to the action of the Superior Court in ruling that the parts of the charge which relate to indictments upon which the defendants were not sentenced should not be considered and the assignments quashing the appeals from the indictments upon which sentence was suspended." The extent of that modification has not been exactly stated, but it should be applied to cases where the quashing of such an appeal might work injustice to the defendant.

The appellant points out that in Com. v. Reilly, 125 Pa.Super. 340, 189 A. 768, we reviewed the orders of the Court of Quarter Sessions of Philadelphia County, placing the defendant appellant on probation under two indictments on which he was found guilty, while suspending the imposition of sentence on the remaining indictments on which there were also verdicts of guilty. No objection was made to our doing so, and we did not specifically rule on the matter. But it was frankly stated at the oral argument that the defendant was placed on probation on those two bills, instead of simply suspending the imposing of sentence, in order that his conviction might be reviewed on appeal. An examination of the provisions of section 1 of the Probation Act shows that the placing of the defendant on probation on such terms and conditions as the court may deem right and proper is regarded as a judgment, and the terms and conditions of probation are directed to be duly entered of record "as a part of the judgment in such case". But it is not a final judgment of sentence. The act is clearly to the contrary. It is rather an interlocutory judgment, in the nature of a conditional order placing the defendant under the supervision and control of the court, in a system of tutelage designed for his...