1 A.2d 685 | Pa. Super. Ct. | 1938
The relator was tried in the Court of Oyer and Terminer of Allegheny County on an indictment (No. 33 Nov. Sess. 1932) charging him with robbery while armed with an offensive weapon, to wit, a revolver, and with felonious assault, beating etc. with intent to rob, under section 100 of the Criminal Code (Act of March 31, 1860, P.L. 382), as amended by the Act of April 18, 1919, P.L. 61, and was found guilty on April 11, 1933. The maximum sentence authorized by the Act of 1919 was separate or solitary confinement at labor for twenty years. He was sentenced, the same day, to imprisonment in the Western Penitentiary for not less than ten years nor more than forty years, to be computed from October *406
18, 1932. The sentence was illegal. It was not authorized under section 182 of the Criminal Code, for the indictment did not charge a former conviction (Commonwealth v. Payne,
The relator is not entitled to be discharged, but should be remanded to the Court of Oyer and Terminer of Allegheny County to be sentenced according to law: Commonwealth ex rel. Paige v.Smith,
And now, September 17, 1938, it is ordered and adjudged that the relator be remanded, and that the record be remitted to the Court of Oyer and Terminer of Allegheny County, to the end that appropriate process may be issued to bring him into court for re-sentence in accordance with law, taking into consideration the time he has already served.
