Opinion
October 9, 1957.
November 12, 1957.
Criminal law — Practice — Habeas corpus — Substitute for appeal — Alleged trial errors — Variance between indictment and proof — Sufficiency of witness's identification — Charge to jury — Opportunity to speak before imposition of sentence — Excessive sentence — Improper remarks of district attorney.
1. Habeas corpus can never serve as a substitute for an appeal.
2. The trial judge is not required in a noncapital case to afford the defendant an opportunity to speak prior to the passing of sentence.
3. In a habeas corpus proceeding, in which it appeared that relator, who had been convicted and sentenced on indictments charging burglary, larceny, robbery, unlawfully carrying firearms and conspiracy, complained of a variance between the allegations of the indictment and the proof as to the identity of the robbery victim (although relator had not objected to this at trial), of the ability of a particular witness to identify him as the gunman, that the trial court had not properly instructed the jury on the law of the case, that the court had refused to allow relator to say something before it passed sentence (although the record did not show refusal but possibly omission), that his sentence was excessive, and that the district attorney made improper remarks in his opening address, it was Held, in the circumstances, that the order of the court below denying the writ should be affirmed.
Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ.
Appeal, No. 311, Oct. T., 1957, from order of Court of Common Pleas No. 3 of Philadelphia County, March T., 1957, No. 4144, in case of Commonwealth ex rel. Earl A. Brogan v. William J. Banmiller, Warden. Order affirmed.
Habeas corpus.
Order entered dismissing petition, opinion by SLOANE, J. Relator appealed.
Earl A. Brogan, appellant, in propria persona.
Lawrence M. Aglow and Juanita Kidd Stout, Assistant District Attorneys, James N. Lafferty, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.
Submitted October 9, 1957.
The order of the court below is affirmed on the opinion of Judge SLOANE, as reported in 10 Pa. D. C. 2d 1. See also, Com ex rel. Brogan v. Tees, 180 Pa. Super. 174, 119 A.2d 561.