33 A.2d 925 | Pa. Super. Ct. | 1943
Petition for writ of habeas corpus.
Petitioner was convicted in Lehigh County on four counts of indictment to No. 20 April Sessions, 1936, and was sentenced on June 1, 1936 to imprisonment in *412 the Eastern State Penitentiary for not less than seven and one-half years nor more than fifteen years.
He was also convicted on four counts of indictment to No. 21 April Sessions 1936, and was sentenced the same day to imprisonment in the Eastern State Penitentiary for not less than six months nor more than one year, to take effect at the expiration of the sentence on No. 20.
The indictment to No. 20 contained twelve counts. Had a general verdict of guilty been rendered, the sentence imposed would have been within the law, for the second count charged robbery while armed with an offensive weapon, within section 100 of the Penal Code of 1860, P.L. 382, as amended by Act of April 18, 1919, P.L. 61, which authorized a maximum imprisonment in the penitentiary for twenty years. See Com. ex rel. Otten v. Smith,
The charge contained in all the counts of the indictment to No. 21 was wantonly pointing a revolver (Act of May 8, 1876, P.L. 146). The maximum imprisonment provided in that act is one year's simple imprisonment. Hence defendant could not be sentenced to the penitentiary on that indictment. The sentence should have been for a definite term, not exceeding one year, in the Lehigh County jail. The fact that relator, while serving his sentence under No. 20, was transferred from the penitentiary to the Lehigh County jail, pursuant to the Act of July 11, 1923, P.L. 1044, is of no moment. He is still regarded as a penitentiary prisoner and under the control of the penitentiary authorities as respects parole, etc., until discharged under No. 20. See Com. v.Harradine,
