Opinion
June 10, 1959.
September 16, 1959.
Criminal Law — Practice — Habeas corpus — Substitute for appeal — Sufficiency of evidence.
1. In a habeas corpus proceeding, in which it appeared that defendant, who had been convicted of possessing and dispensing a narcotic drug, complained that the Commonwealth's testimony at his trial had not supported the conviction because of the Commonwealth's failure "to specify the drug content or to establish true chemical analysis" of the drug, it was Held that the alleged error, if any, was a matter which should have been rectified on appeal and that the court below properly refused to grant relator a hearing on his petition.
2. A writ of habeas corpus cannot be made the substitute for an appeal.
Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ.
Appeal, No. 189, Oct. T., 1959, from order of Court of Common Pleas of Delaware County, Dec. T., 1958, No. 1503, in case of Commonwealth of Pennsylvania ex rel. Fred R. Jones v. David N. Myers, Warden. Order affirmed.
Habeas corpus proceeding.
Order entered denying petition, opinion by TOAL, J. Relator appealed.
Fred R. Jones, appellant, in propria persona.
Clement J. McGovern, Assistant District Attorney, and Raymond R. Start, District Attorney, for appellee.
Submitted June 10, 1959.
The appellant, as defendant in the court below, was charged jointly with another with possessing and dispensing a narcotic drug to-wit: marihuana, in violation of § 4 of the Act of July 11, 1917, P.L. 758, 35 P. S. § 854. Both were convicted and appellant is now serving the sentence imposed, in a penal institution.
In this appeal from the refusal of the lower court to grant a hearing on his petition for habeas corpus, the appellant's principal complaint is that the Commonwealth's testimony at his trial did not support the conviction because of the Commonwealth's failure "to specify the drug content or to establish true chemical analysis" of the drug possessed and dispensed by him. If error, this was a matter to be rectified on appeal, and since a writ of habeas corpus cannot be made the substitute for an appeal no hearing was required in the court below. Com. ex rel. Gaurich v. Keenan, 181 Pa. Super. 619, and cases cited, p. 622, 124 A.2d 144. Cf. Com. ex rel. Bishop v. Maroney, 382 Pa. 324, 114 A.2d 906. We find no merit in the other contentions of appellant that there was a denial of due process in the court below.
Order affirmed.