Opinion
March 17, 1952.
July 17, 1952.
Criminal law — Habeas corpus — Question decided by Supreme Court on previous petition — Sufficiency of evidence.
1. Where, in a habeas corpus proceeding, it appeared that the very question submitted by relator had been decided against him by the Supreme Court, which had dismissed a previous petition for a writ of habeas corpus, and that relator did not contend that the instant proceeding provided any material or relevant issues not disposed of or decided in the habeas corpus proceeding before the Supreme Court, it was Held, in the circumstances, that the Superior Court would not review the matter.
2. The question of the sufficiency or insufficiency of the evidence to sustain a conviction cannot be raised by habeas corpus.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS, ARNOLD and GUNTHER, JJ.
Appeal, No. 35, Oct. T., 1952, from order of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1951, No. 3134, in case of Commonwealth of Pennsylvania ex rel. Raymond Simpson v. Cornelius J. Burke, Warden, Eastern State Penitentiary. Order affirmed.
Habeas corpus proceeding.
Order entered dismissing petition and refusing writ. Relator appealed.
Raymond Simpson, appellant, in propria persona, submitted a brief.
Michael von Moschzisker, First Assistant District Attorney, John T. Curtin, Assistant District Attorney, and Richardson Dilworth, District Attorney, for appellee, submitted a brief.
Submitted March 17, 1952.
Relator was charged in the bill of indictment with having entered a "pay station telephone booth situated and located in the Broad Street Pennsylvania Station" in Philadelphia with intent to commit a felony therein. He has filed this petition for writ of habeas corpus alleging that a pay station telephone booth is not a building within the meaning of Section 901 of The Penal Code of 1939; that the indictment should have charged relator with having violated Section 903 of The Penal Code which deals with burglary of railroad cars. Relator contends here that a pay station telephone booth is not a building within the meaning of Section 901. There is no merit to relator's argument, but there are two valid reasons which eliminate the necessity for any consideration of that question.
First, the very question submitted by this relator has been decided against him by the Supreme Court. The record discloses (253 Misc. Docket No. 9 Eastern District) that on May 26, 1949, relator filed his petition for a writ of habeas corpus in the Supreme Court. That Court on June 24, 1949, dismissed the petition and refused a reargument by an order entered on March 19, 1950. Relator does not now contend that the present proceedings submit any material or relevant issues not disposed of or decided in the habeas corpus proceeding before the Supreme Court. In such circumstances, we will not review the matter. Commonwealth ex rel. Lewis v. Ashe, 142 Pa. Super. 357, 16 A.2d 433.
Second, the question of the sufficiency or insufficiency of the evidence to sustain a conviction cannot be raised by habeas corpus. Commonwealth ex rel. Marelia v. Burke, 366 Pa. 124, 126-127, 75 A.2d 593.
Order refusing petition for writ of habeas corpus affirmed.