Summary
In Commonwealth ex rel. Spader v. Burke, 171 Pa. Super. 289, this court had held as moot an appeal from the dismissal of the Petition for Writ of Habeas Corpus where the petitioner was released on parole pending disposition of his appeal and no longer was in the custody of the Warden "from whose custody, by writ of habeas corpus, relator sought his discharge", the court reasoning at page 291: "Since relator's release respondent-warden could not produce his body to answer any judgment of the court.
Summary of this case from Com. ex rel. Yambo et al., v. JenningsOpinion
March 20, 1952.
July 17, 1952.
Criminal law — Habeas corpus — Direction to person detaining another to produce the body — Parole during pendency of appeal — Moot question.
1. A writ of habeas corpus is directed to the person detaining another and commanding him to produce the body.
2. Where it appeared that relator had appealed from the dismissal of his petition for a writ of habeas corpus, and that, after submission of the case without argument and pending the disposition of the appeal, relator was released on parole by the Board of Parole and was no longer in the custody of the respondent-warden, it was Held that the proceeding had become moot, and the appeal was dismissed.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS, ARNOLD and GUNTHER, JJ.
Appeal, No. 53, Oct. T., 1952, from order of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1951, No. 2677, in case of Commonwealth of Pennsylvania ex rel. Albert Spader v. Cornelius J. Burke, Warden, Eastern State Penitentiary. Appeal dismissed.
Habeas corpus proceeding.
Order entered denying petition, opinion by LEVINTHAL, J. Relator appealed.
Albert Spader, appellant, in propria persona, submitted a brief.
Richardson Dilworth, District Attorney, Michael von Moschzisker, First Assistant District Attorney, and Armand Della Porta, Assistant District Attorney, for appellee, submitted a brief.
Submitted March 20, 1952.
Relator had been indicted and sentenced to the Eastern State Penitentiary on January 3, 1940, by the Court of Oyer and Terminer of Philadelphia County after entering pleas of guilty to five bills of indictment, Nos. 833, 834, 835, 836, and 837, December Sessions, 1939. The sentences were consecutive; and they were endorsed on each indictment, and signed by the trial judge, Honorable HARRY S. MCDEVITT.
See Com. ex rel. Scoleri v. Burke, 171 Pa. Super. 285, 90 A.2d 847.
On October 18, 1951, relator filed his petition for writ of habeas corpus in the Court of Common Pleas No. 4 of Philadelphia County, contending that the sentences were null and void because the transcript of the proceedings disclosed that the trial judge orally stated that relator was sentenced for a period of not less than twenty years and six months and not in excess of forty-one years. These were the totals of the minimum and maximum sentences.
Hearing was held before Judge LEVINTHAL on the petition for writ of habeas corpus on October 26, 1951, at which relator was present and testified. Thereafter, the petition was dismissed and relator remanded. On December 8, 1951, an appeal was taken to this Court. Briefs were filed by relator and the District Attorney of Philadelphia County; the case was submitted without argument on March 20, 1952. It is admitted that, pending the disposition of this appeal, relator was released on parole by the Pennsylvania Board of Parole on May 29, 1952. As a consequence of the parole relator is no longer in the custody of the Warden of the Eastern State Penitentiary from whose custody, by writ of habeas corpus, relator sought his discharge. Since relator's release respondent-warden could not produce his body to answer any judgment of the court. A writ of habeas corpus is directed to the person detaining another and commanding him to produce the body. Relator being no longer detained by the respondent-warden the proceeding against him has become moot. See Van Meter v. Sanford, 5 Cir., 99 F.2d 511; Ex parte Herrera et al., (Cal.) 137 P.2d 82, 86.
Appeal is dismissed.