Opinion
October 2, 1940.
Criminal law — Practice — Habeas corpus — Relator not entitled to immediate discharge.
1. A writ of habeas corpus may not be invoked where the relator is legally confined in prison and admittedly is not entitled to discharge for a substantial length of time.
2. Commonwealth ex rel. Padmonsky v. Smith, 127 Pa. Super. 24, held controling.
Petition for writ of habeas corpus. Original jurisdiction, Misc. Docket No. 144, in case of Commonwealth ex rel. Audley Stauffer v. Stanley P. Ashe, Warden. Petition dismissed.
This petition for writ of habeas corpus is premature: Com. ex rel. Padmonsky v. Smith, 127 Pa. Super. 24, 191 A. 684.
The relator is admittedly lawfully confined in the Western State Penitentiary under a sentence imposed by the Court of Oyer and Terminer of Butler County (No. 1 December Term, 1929), which, by reason of his having pleaded guilty to the commission of a crime in Clarion County, (No. 27 August Sessions, 1937), while on parole from his sentence in Butler County, will not expire until January 27, 1946, and under the law is not subject to commutation.
The question he seeks to raise now — that his sentence in Clarion County for not less than five years nor more than ten years in the same penitentiary, should begin to run from the date of the sentence, August 7, 1937, instead of from the completion of his prior sentence, January 27, 1946 — will not properly arise until the prior sentence is ended, January 27, 1946.
We may call attention, however, to the fact that the Act of June 22, 1931, P.L. 862, which amends section 10 of the Parole Act of June 19, 1911, P.L. 1055; provides: ". . . . . . but if sentenced to the penitentiary from which said convict was released on parole, then the service of the remainder of the said term originally imposed shall precede the commencement of the term imposed for said crime" (Italics supplied). It is apparently the law that if any sentence is imposed for the crime committed while the convict was on parole, it shall not begin to run until after the remainder of the term of the sentence originally imposed has been served, without commutation.
The sentence of imprisonment imposed on August 7, 1937 appears by the record to have been to the Western Penitentiary for and during the period of not less than five years nor more than ten years.
The rule is discharged and the petition is dismissed, without prejudice to relator's right to present his petition at the expiration of the term of his original sentence, January 27, 1946.