Opinion
November 12, 1947.
Criminal law — Sentence — Simple imprisonment — Erroneous confinement in penitentiary — Correction upon resentence — Remanding relator — Appellate court procedure — Act of June 24, 1939, P.L. 872.
1. Under section 854 of the Act of June 24, 1939, P.L. 872, the punishment for uttering a worthless check is by simple imprisonment, and the legal place of confinement is the county jail.
2. Imprisonment undergone in the penitentiary is equivalent to a substantially greater period of time served under simple imprisonment in the county jail, and, where a defendant is erroneously sentenced and confined in the penitentiary, this should be taken into consideration when he is sentenced anew in conformity with the law.
3. In such case, no strict mathematical formula is applicable to the exercise of the discretion of the court.
4. Where, in a habeas corpus proceeding, it appears that the relator was erroneously sentenced to confinement to the penitentiary instead of to imprisonment in the county jail, the error will be corrected by remanding the relator for resentence in proper form and according to law.
Petition for writ of habeas corpus. Original jurisdiction, No. 204, Misc. Docket, in case of Commonwealth ex rel. Dennis v. Ashe, Warden. Relator remanded for resentence.
This is a petition for a writ of habeas corpus. Rule to show cause was granted. Answers were filed.
The relator, on December 5, 1946, pleaded guilty to three bills of indictment (Nos. 207, 208, and 314, November Sessions, 1946, Westmoreland County). Each bill charged relator with making, drawing, uttering and delivering a worthless check. The indictments were drawn under the Act of June 24, 1939, P.L. 872, § 854, 18 Pa.C.S.A. § 4854. He was sentenced upon each of the three bills to the Western State Penitentiary for a term of not less than one year nor more than two years; sentence on bill No. 208 to be computed from the expiration of sentence on bill No. 207, and sentence on bill No. 314 to be computed from the expiration of sentence on bill No. 208. He was committed to the penitentiary as of the date of sentence, and received December 6, 1946. The District Attorney of Westmoreland County, in his answer, concedes that the sentences were improper in that the court had no authority to sentence relator to the penitentiary.
Punishment for the offenses with which relator was charged is prescribed by section 854 of the Act of June 24, 1939, P.L. 872, 18 Pa.C.S.A. § 4854, which provides that one convicted thereof "shall be imprisoned not exceeding two (2) years, or fined not exceeding one thousand dollars ($1,000), or both." The punishment is by simple imprisonment, and it follows that the legal place of confinement is the county jail. See section 75 of the Act of March 31, 1860, P.L. 427, as amended, 19 P. S. § 891; Com. v. Arbach, 113 Pa. Super. 137, 141, 172 A. 311; Com. v. Camwell, 89 Pa. Super. 339, 351; Com. v. Morura et al., 75 Pa. Super. 22; Com. v. Barge, 11 Pa. Super. 164. Consequently, insofar as the sentences provided for confinement in the penitentiary, they are not in accordance with the law. Com. ex rel. Stanton v. Francies, 250 Pa. 350, 95 A. 798; Com. ex rel. Corkle v. Smith, 158 Pa. Super. 98, 43 A.2d 915; Com. v. Smith (No. 2), 116 Pa. Super. 146, 149, 177 A. 73.
Our courts have recognized that imprisonment undergone in the penitentiary is equivalent to a substantially greater period of time served under simple imprisonment in the county jail. This should be taken into consideration by the court below when relator is sentenced anew in conformity with the statute. No strict mathematical formula is applicable to the exercise of the discretion of the court. See Com. ex rel. Stanton v. Francies, supra, 250 Pa. 350, 95 A. 798; Clellans et al. v. Com., 8 Pa. 223; Com. ex rel. Bishop v. Smith, 123 Pa. Super. 79, 186 A. 763; Com. ex rel. Elliott v. Francies, 58 Pa. Super. 270; Com. v. Fetterman, 26 Pa. Super. 569.
Relator on this writ of habeas corpus will be given relief from the sentences illegally imposed; and under the circumstances of this case the error will be corrected by remanding relator for resentence in proper form and according to law. See Com. v. Downer, 161 Pa. Super. 339, 342, 53 A.2d 897; Com. ex rel. Guiramez v. Ashe, 293 Pa. 18, 141 A. 723; Com. ex rel. Snyder v. Francies, 58 Pa. Super. 273.
And now, November 12, 1947, it is ordered and adjudged that the rule previously allowed to show cause why habeas corpus should not issue be made absolute, and the application is treated as though the writ had issued and Walter Z. Dennis were before us; and it is further ordered and adjudged that the prisoner be remanded for resentence, and that the record be remitted to the court below to the end that appropriate process may issue to bring him into that tribunal for resentence in accordance with the law as here announced.