48 Pa. Super. 373 | Pa. Super. Ct. | 1911
Opinion by
The county of Schuylkill forms a separate judicial district, and its courts are presided over by a president judge and two additional law judges. The defendant was tried upon an indictment which charged that he had willfully, unlawfully and fraudulently made a false return of the votes cast at a primary election and the trial resulted, on March 15, 1910, in a verdict of guilty as indicted. One of the additional law judges of the court presided at that trial. The defendant within the proper time made a motion for a new trial and obtained a rule to show cause why a new trial should not be granted. The rule to show cause why a new trial should not be granted was considered by the court in banc, all three of the judges being present, and all concurred, after consultation and deliberation, in discharging the rule and imposing sentence upon the defendant, on April 18, 1910. The defendant, on April 28, 1910, presented, to the judge who had presided at the trial, a petition praying that the sentence be revoked, “and to permit him to establish the truth of all the allegations set forth in his petition .... and if the court does not find that the allegations within his personal knowledge are true as herein stated, then your peti
The defendant did not, after the final judgment of the court was entered on May 9, 1910, see fit to take an appeal in regular order, under which he might have caused to be reviewed the entire record of the proceeding which had resulted in his conviction. Having been taken into custody by the sheriff, he elected to challenge the authority of the sheriff to detain him, under the final order made by the court, on May 9, 1910. He applied for and obtained from this court a writ of habeas corpus and ancillary to that proceeding a writ of certiorari was issued-to bring up the record in this case. One William J. Jones had also been indicted for an offense growing out of . the same transactions in which this defendant was involved
The learned counsel for the appellee argues that as the court did not in its order of May 9, 1910, formally state that the motion for a new trial was overruled, that motion must be considered as having been left still pending and that it was, therefore, within the power of a single judge of the court below to grant a new trial at any future time, however remote. One sufficient answer to this is to be found in the order of the court, in the words “the rule is discharged,” clearly indicating the intention of the court to discharge any rule, founded upon the petition of the defendant, which ought to be disposed of before final judgment. But the conclusive and final answer to this contention of the appellee is found in the well recog
The order dated April 10, 1911, setting aside the judgment and granting the defendant a new trial, is reversed and the record is remitted to the court below with direction to carry into effect the sentence imposed by the court below on May 9, 1910, and to this end it is ordered that the defendant forthwith appear in the court below and that he be by that court committed until he has complied with so much of said sentence as had not been performed at the time the said order of April 10, 1911, was made.