Opinion
March 11, 1963.
March 19, 1963.
Criminal Law — Practice — Habeas corpus — Sentence — Robbery or armed robbery — Evidence — §§ 704 and 705 of the Act of June 24, 1939, P.L. 872.
In a habeas corpus proceeding, in which it appeared that petitioner, who had entered a plea of guilty to robbery, contended that he should have received a lesser term than that imposed, because at the time of the robbery, he alleged, he was not armed with a deadly weapon, and, therefore, should have been sentenced under § 704, rather than § 705, of the Act of June 24, 1939, P.L. 872; that the district attorney at the time the case was called stipulated that no weapon was used during the robbery, but an examination of the indictment to which petitioner pleaded guilty showed that it averred that he was armed with an offensive weapon and that he committed the offense by menace and force, and there was testimony that at the time of the robbery defendant had his right hand in his coat pocket, gestured threateningly with the same, and stated that he was not fooling and would shoot, whereupon the victim handed over money to him; and that the court below, holding that the statement made by the prosecutor at the time of sentencing was ill-advised, that all the facts established that defendant had put three people in fear and that his gestures and threats to shoot indicated that he had had a gun, and, that therefore, defendant was properly indicted on the charge of armed robbery, dismissed the petition; it was Held that the order of the court below should be affirmed.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 9, March T., 1963, from order of Court of Common Pleas of Dauphin County, Jan. T., 1962, No. 560, in case of Commonwealth ex rel. Isaiah R. Johnson, Jr. v. David N. Myers, Superintendent. Order affirmed.
Same case in court below: 29 Pa. D. C. 2d 426.
Habeas corpus.
Order entered dismissing petition, opinion by SOHN, P.J. Relator appealed.
Isaiah R. Johnson, Jr., appellant, in propria persona.
George W. Gekas, Assistant District Attorney, and Martin H. Lock, District Attorney, for appellee.
FLOOD, J., dissented.
Submitted March 11, 1963.
The order of the court below dismissing petition for writ of habeas corpus is affirmed on the opinion of President Judge SOHN of the Court of Common Pleas of Dauphin County, as reported in 29 Pa. D. C. 2d 426.
FLOOD, J., dissents.