66 A.2d 281 | Pa. | 1949
The relator, Edward Milewski, appeals from an order of the Superior Court entered September 29, 1948, dismissing his petition for a writ of habeas corpus. After entering a plea of not guilty, he was brought to trial on September 12, 1946, in the Court of Oyer and Terminer of Fayette County on an indictment containing several counts, to wit: assault and battery; assault and battery with intent to rob; robbery with accomplice; and robbery with violence. The jury retired on the afternoon of September 13, 1946, and on the same day found the defendant guilty of assault and battery with intent to rob and acquitted him of the other charges. It is alleged that immediately after the trial and before the jury returned its verdict the prisoner was removed from the courtroom to the county jail, where he was continuously detained until October 1, 1946, on which date he was sentenced to a term of from four to eight years in the Western Penitentiary. The records of the court are silent as to the whereabouts of the prisoner at the time the jury returned its verdict. He alleges that he never learned of this verdict until the day of his sentence.
Petitioner had been convicted on May 17, 1940, in Erie County for robbery and then sentenced to the Western Penitentiary for a term of from four to eight years. *50 In May, 1945, he was released on parole, but again returned to the Western Penitentiary for parole violation on October 2, 1946, pursuant to Fayette County conviction and sentence. On the expiration of his "back time" on June 12, 1949, he must commence serving the Fayette County sentence.
The relator contends that his conviction and present commitment is void because (1) he was deprived of his constitutional right to be present in court at the rendition of the jury's verdict; (2) that he was deprived of his right to file a motion for a new trial by reason of the fact that he had no knowledge of the jury's verdict until after the time to file such a motion had elapsed; (3) that his absence from the court room deprived him of his right to have the jury polled; and (4) that the trial court lost its power to impose sentence on October 1, 1946, since no order was made by the court deferring or suspending sentence in the September term of court.
A writ of habeas corpus is a writ of right and may not be refused where the relator shows a prima facie case entitling him to be discharged or bailed. See Com. ex rel. McGlinn v.Smith,
In Commonwealth ex rel. Di Giacomo v. Heston,
In Com. ex rel. Stanton v. Francies,
An application for a writ of habeas corpus is appropriate where the relator is confined under a void or illegal sentence:Commonwealth v. Morgan,
A prisoner on trial for a felony has an inherent and inalienable right to be present at the rendition of the verdict against him: GIBSON, C. J., in Prine v. Commonwealth,
The relator should have an opportunity to prove the material allegations of his petition.
The Order of the Superior Court is reversed, and the record is remitted to that Court with directions to remit the record to the Court of Oyer and Terminer of Fayette County with directions to that court to afford the relator an opportunity to support by competent testimony those allegations of his petition which if true would entitle him to the writ prayed for. The complete record shall then be returned to the Superior Court for appropriate action on the petition for the writ.