Commonwealth v. Francies, 67 Pa. Super. 588

Commonwealth v. Francies

67 Pa. Super. 588 | Pa. Super. Ct. | 1917

Opinion by

Williams, J.,

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 *591to undergo imprisonment in the Western Penitentiary at Allegheny, Pennsylvania, for a period of not less than one year and stand committed until the sentence was complied with. From this judgment an appeal was taken to this court. No complaint was made as to the sentence nor was it assigned as error. We sustained the conviction and remitted the record for execution: Com. v. Hubbard, 65 Pa. Superior Ct. 213. The court below, on January 6, 1917, made the following order of commitment: “And now, June 13, 1916, the court sentenced the defendant, W. H. Hubbard, to pay a fine of one hundred dollars to the Commonwealth, pay the costs of prosecution, restore the property stolen, if not already restored, or pay the owner the full value thereof and undergo an imprisonment in the Western Penitentiary of Pennsylvania (situated in the City and County of Allegheny), for and during the period of not less than one year. Sentence to be computed from January 9, 1917, there to be kept, fed, clothed, and treated as the law directs, and stand committed until the sentence be complied with.

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*592thing, or that he had stolen any property. That part of the commitment which says he shall “restore the prop; erty stolen, if not already restored, or pay the owner the full value thereof” is not a part of the sentence and is a nullity, and must have resulted from an inadvertence on the part of the clerk of the court below in using a blank form not applicable to the case in hand. The direction that the relator is “there to be kept, fed, clothed, and treated as the law directs,” is surplusage, as he would be so treated under Section 3 of the Act of April 23,1829, 10 Smith’s Laws 431.

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.