139 A. 197 | Pa. | 1927
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 *535 sum of money by false pretenses, of fraudulent conversion of the same, and conspiring with one unnamed to cheat and defraud the prosecutor. The first offense charged is made punishable under section 111 of the Crimes Act (March 31, 1860, P. L. 410), 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), 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, section 128). 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.,
Whether this legislation has granted the power to impose two sentences, one under the Act of 1860, and the other under the Act of 1917, the underlying facts constituting the crimes charged being the same, need not be decided here, for it is clear that the court could not add the penalties for two offenses, and include them in one sentence of not more than eight nor less than seven years. Had it desired to inflict separate punishments based on distinct counts, it was essential that not more than the maximum period of confinement for each crime be imposed, with the direction that one sentence take effect at the expiration of that preceding. If this does not appear, the terms run concurrently: Halderman's Case,
In view of the conclusion stated, it is unnecessary to discuss the question raised of the legality of any imprisonment in the Western Penitentiary. The penalty affixed in case of conviction on either the first or second counts of the bill of indictment is simple imprisonment, which means incarceration in a county jail: Com. v. Francies,
Relator discharged. *537
