186 Pa. Super. 176 | Pa. Super. Ct. | 1958
Opinion by
In this habeas corpus proceeding, relator questions the legality of his sentence for prison breach; he is now confined in the State Penitentiary at Graterford.
It is relator’s contention that the Act of July 29, 1953, P. L. 1445, 18 PS §4309, provides for punishment for prison breach only in those cases when a prisoner is under sentence at the time of the prison breach.
The Act of 1953 amends section 309 of the Act of June 24,1939, P. L. 872, by striking out the section and substituting therefor section 1 of the Act of 1953. It supplants any previous enactment on the subject, and makes prison breach as therein defined a felony and fixes the penalty. Before the Act of 1953 prison breach was a misdemeanor.
We find no merit in relator’s argument.
Relator was charged with burglary. In default of bail he was committed to the York County Jail. While there confined he escaped and was subsequently apprehended. Thereafter he was indicted for both offenses. He entered pleas of guilty and was sentenced on the burglary charge to a term of not less than two and one-half years nor more than five years. For prison breach he was sentenced to a term of not less than one and one-half years nor more than three years, this sentence to be consecutive to, and begin al. the expiration of the sentence for burglary.
Prison breach is a substantive offense, and punishment therefor is not merely incidental to the original offense and follows irrespective of the propriety of the commitment at the time of escape.
The Act of 1953 makes it mandatory that the sentence for prison breach shall commence from the expiration of an original sentence being served, but, in the absence of such a sentence at the time of escape, the courts have inherent power to fix the time for beginning the service of sentence imposed for prison breach. See Com. ex rel. Hill v. Burke, 165 Pa. Superior Ct. 583, 587, 69 A. 2d 169.
The order is affirmed.