67 Pa. Super. 588 | Pa. Super. Ct. | 1917
Opinion by
W. H. Hubbard was convicted March 13, 1915, in the Court of Quarter Sessions of Potter County, óf. conspiracy to cheat and defraud, and on June 13, 1916, sentenced to pay the costs of prosecution or give bail for the payment of the same within ten days, a fine of $100, and
Relator, complaining that he was unlawfully sentenced, and unlawfully committed, now asks for the cor-' rective influence of an original writ of habeas corpus.
The sentence for a period of “not less than one year” is not in conformity with the law. Under the Act of March 31,1860, Section 128, P. L. 413, the punishment for conspiracy to cheat and defraud is a fine of not more than $500, and either simple imprisonment or imprisonment by separate or solitary confinement at labor not exceeding two years. Section 6 of the Act of June 19,1911, P. L. 1055, provides that a maximum not exceeding that fixed by the act under which the conviction is had, as well as a minimum shall be fixed by the sentence of the court.
The ■ conviction was for conspiracy to cheat and defraud, but it does not appear in the record that the relator succeeded in cheating or defrauding anyone of any
In committing a prisoner, it is a safe rule to follow the language of the statute. The failure to do so in this case has resulted in the defects complained of. These defects, however, do not affect the liability of the relator to punishment for the offense of which he has been adjudged guilty. He has not been compelled to undergo an imprisonment not authorized by.the Act of 1860.
The record is remitted to the court below to the end that the relator may be brought before it and be re-sentenced according to law, and in such sentence due allowance shall be made by the court for the punishment already suffered.