Commonwealth v. Ashe

Citation139 A. 197,280 Pa. 534
PartiesCOMMONWEALTH ex rel. HOLINKO v. ASHE, Warden.
Decision Date25 June 1927
CourtUnited States State Supreme Court of Pennsylvania
139 A. 197
280 Pa. 534

COMMONWEALTH ex rel. HOLINKO
v.
ASHE, Warden.

Supreme Court of Pennsylvania.

June 25, 1927.


139 A. 197

Petition by the Commonwealth, on the relation of Frank Holinko, for writ of habeas corpus to be directed to Stanlay P. Ashe, Warden of the Western Penitentiary of Pennsylvania. Relator discharged.

The application was not heard orally, but was decided on petition and brief.

F. J. Lagorio, of Pittsburgh, for relator.

The rule to show cause why the petition should not be allowed was served on Blaine Mast, district attorney of Armstrong county, Kittanning, Pa., but he did not file an answer or brief.

PER CURIAM. Frank Holinko, relator, has petitioned for a writ of habeas corpus, averring that he is improperly detained in the Western Penitentiary, and asks that he be discharged from further custody. The defendant was indicted in Armstrong county for obtaining a certain sum of money by false pretenses, for fraudulent conversion of the same, and for conspiring with one unnamed to cheat and defraud the prosecutor. The first offense charged is made punishable under section 111 of the Crimes Act (Act March 31, 1860, P. L. 410 [Pa. St. 1920, § 7847]), by fine and imprisonment not exceeding three years; the second, by fine and imprisonment not exceeding five years (Act May 18, 1917, P. L. 241 [Pa. St. 1920, §§ 7829-7831]); and the third, by fine and separate or solitary confinement at labor, or by simple imprisonment not exceeding two years (Act March 31, 1860, P. L.413, § 128 [Pa. St. 1920, § 7747]). A plea of guilty was entered generally, and on December 31, 1921, sentence was imposed of a fine of $2,000 and "imprisonment at separate or solitary confinement in the Western Penitentiary (situated in the city and county of Allegheny) for and during the period of not more than eight years nor less than seven years, to be computed from this date."

The petitioner insists the sentence was illegal, and that he has served a longer term than could lawfully be imposed as a result of which he is entitled to a discharge. An examination of the record leads to the conclusion that the position is well taken, and defendant is entitled to the relief prayed for. The three counts in the bill of Indictment charge, in effect, the same offense, as constituting different crimes. Ordinarily, the sentence imposed, under such circumstances, should be limited to the punishment for the one most serious (Johnston v. Com., 85 Pa. 54, 27 Am. Rep. 622), though...

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14 cases
  • Commonwealth v. Boerner
    • United States
    • Superior Court of Pennsylvania
    • 3 Octubre 1980
    ...... Nelson, supra, that when crimes merge for sentencing. purposes, the one for which a defendant may be sentenced is. the most serious crime, i. e., the one to which the. legislature attached the greatest possible maximum penalty. See also Commonwealth ex rel. Shaddock v. Ashe, 340. Pa. 286, 288-89, 17 A.2d 190, 190-91 (1940); Commonwealth. ex rel. Russo v. Ashe, 293 Pa. 322, 324, 142 A. 317, 318. (1928); Commonwealth ex rel. Holinko v. Ashe, 290. Pa. 534, 535, 139 A. 197 (1927). In Nelson, the. defendant's single act resulted in his conviction of: (1). ......
  • Com. v. Boerner
    • United States
    • Superior Court of Pennsylvania
    • 3 Octubre 1980
    ...Commonwealth ex rel. Russo v. Ashe, 293 Pa. 322, 324, 142 A. 317, 318 (1928); Commonwealth ex rel. Holinko v. Ashe, 290 Pa. 534, 535, 139 A. 197 (1927). In Nelson, the defendant's single act resulted in his conviction of: (1) assault and battery; (2) assault and battery in resisting arrest;......
  • Commonwealth v. Antico
    • United States
    • Superior Court of Pennsylvania
    • 6 Octubre 1941
    ...v. Ashe, 293 Pa. 322, 324, 142 A. 317; Com. ex rel. Ciampoli v. Heston, 292 Pa. 501, 141 A. 287; Com. ex rel. Holinko v. Ashe, 290 Pa. 534, 139 A. 197. And it makes no difference that one of the counts charges a felony and the other a misdemeanor, when the offenses are not repugnant in thei......
  • Com. v. Knox
    • United States
    • Superior Court of Pennsylvania
    • 20 Enero 1953
    ...no modification thereof is required. Com. ex rel. Biscetti v. Leslie, 290 Pa. 530, 139 A. 195; Com. ex rel. Holinko v. Ashe, 290 Pa. 534, 139 A. 197; Cf. Com. v. Clark, 123 Pa.Super. 277, 187 A. V. Removal From Office. The Act provides that upon conviction a magistrate 'shall forfeit his of......
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