Commonwealth v. Ashe

Citation188 A. 841
PartiesCOMMONWEALTH ex rel. SULLIVAN v. ASHE, Warden State Penitentiary.
Decision Date11 January 1937
CourtUnited States State Supreme Court of Pennsylvania
188 A. 841

COMMONWEALTH ex rel. SULLIVAN
v.
ASHE, Warden State Penitentiary.

Supreme Court of Pennsylvania.

Jan. 11, 1937.


188 A. 841

Original habeas corpus proceeding by the Commonwealth on the relation of Elmer Sullivan against Stanley Ashe, Warden State Penitentiary, Western District of Pennsylvania, wherein rule to show cause was granted.

Rule discharged.

Argued before KEPHART, C. J., and SCHAFFER, MAXEY, DREW, LINN, STERN, and BARNES, JJ.

Bernard T. Foley, of Erie, for petitioner.

Charles J. Margiotti, Atty. Gen., Adrian Bonnelly and Grover C. Ladner, Deputy Attys. Gen., Oliver C. Cohen, Asst. Deputy Atty. Gen., and Mortimer E. Graham, Dist. Atty., and Burton R. Laub, First Asst. Dist. Atty., both of Erie, for the commonwealth.

STERN, Justice.

This is a petition for a writ of habeas corpus on which the court, exercising its original jurisdiction, has granted a rule to show cause. The petitoner, Elmer Sullivan, in 1929 pleaded guilty to breaking and entering with intent to commit a felony, and was sentenced to the Western Penitentiary for a term of from three to six years. He was transferred to Rockview, from where he escaped in 1931. Being apprehended, he was indicted for breaking out of prison, pleaded guilty, and was sentenced to the penitentiary under the Act of March 31, 1860, P.L. 382, § 3 (18 P.S. § 251), for a term of from three to six years to be computed from the expiration of his original sentence.

The present writ is based upon the alleged unconstitutionality of the statute under which the sentence was imposed. The act provides, inter alia, that a prisoner breaking penitentiary or jail is guilty of 3 misdemeanor and upon conviction shall be sentenced to undergo an imprisonment to commence from the expiration of, and for a period of time not exceeding, the original sentence by virtue of which he had been imprisoned. The criticism leveled at the act is that for the offense of breaking prison unequal sentences are thus provided, depending upon what, it is contended, is the merely adventitious circumstance of the duration of a former sentence of the offender. It is claimed that this is a denial of the equal protection of the laws, and therefore a violation of section 1 of the Fourteenth Amendment of the Constitution of the United States. It is pointed out that in this very case the petitioner, Sullivan, made his escape from Rockview simultaneously with a fellow prisoner, Clarence McCann. The two were apprehended at the same time and sentenced on the same day, but McCann received a sentence of only one to two years because that was the extent of his original sentence.

The constitutional provision here invoked has been the subject of such a wealth of interpretation by the federal Supreme Court that, at least as far as...

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