175 Pa. Super. 636 | Pa. Super. Ct. | 1954
Opinion by
As a background to the present proceeding reference should be made to relator’s sentences on two other
At numbers 2393 and 2394 January Term, 1954, the relator filed two petitions for habeas corpus attacking sentences, among others, imposed on Bills 127, 128 and 437. On December 14, 1953, Judge Nixon in two separate orders dismissed the two petitions. No appeals were taken from the orders. Since that time relator has acquiesced in the order of the lower court as to the sentence on Bill 128 and he is now in the Allegheny County Workhouse serving that sentence. But subsequent to the order of . December 14, 1953, he again, by two separate petitions for habeas corpus attacked the sentences on Bills 127 and 437. After hearing relator and his counsel Judge Nixon dismissed the petitions in two separate orders. From these orders relator appealed at 121 April Term, 1954, involving the sentence imposed on Bill 437 and at 124 April Term, 1954, questioning
Since relator’s sentence on Bill 127 has been served, the question as to its validity raised in the present habeas corpus proceeding, is academic. We nevertheless have considered the several grounds upon which the sentence was attacked and find no merit in any of them.
Relator complained in the court below in this habeas corpus proceeding, and here asserts as appellant, that the return of the magistrate was irregular and that the action of the grand jury in indicting him was unwarranted in law for that reason. Any question as to the validity of the indictment could have been raised in the trial court, subject to appeal to us from an adverse decision. Such question even when meritorious cannot be raised for the first time in a proceeding such as this. Habeas corpus can never be used as a substitute for an appeal. Com. ex rel. McGlinn v. Smith, 344 Pa. 41, 47, 24 A. 2d 1, citing with approval our holding in Com. v. Seechrist, 27 Pa. Superior Ct. 423, to the effect that “a writ of habeas corpus cannot be made a substitute for a writ of error, and where a party is in custody by virtue of a final decree or judgment, or process thereon, of a court of competent jurisdiction, no inquiry into the process which led to the decree is to be had, and no relief administered on habeas corpus.” Moreover appellant in this proceeding may not question the sufficiency
We must disregard relator’s attack in his brief in this appeal on the legality of the sentence imposed on Bill 437 since, as above noted, he had discontinued the separate appeal taken by him on that Bill.
Order affirmed.