Opinion
April 21, 1944.
Criminal law — Habeas corpus — Excessive sentence — Maximum penalty already served.
In a habeas corpus proceeding, the petitioner will be discharged from confinement where it appears that the sentence for the crime charged against him was excessive, and that he has already served the maximum penalty.
Petition for writ of habeas corpus. Original jurisdiction, No. 283 Miscl. Dkt. No. 5, in case of Commonwealth ex rel. Munyan v. Herbert Smith, Warden. Rule to show cause made absolute, and petitioner ordered discharged from confinement.
The petitioner pleaded guilty to a bill of indictment charging him with indecent assault on a female child six years of age. He was sentenced on January 29, 1942 to imprisonment in the Eastern State Penitentiary for not less than 18 months nor more than 3 years, and was committed the same day.
He asks in this petition to be released from imprisonment on the ground that the crime charged is a common law misdemeanor and that the maximum penalty for it is simple imprisonment not exceeding two years.
The district attorney and the warden, in their answers, concede that his contention is correct.
Having served more than two years imprisonment, he is entitled to be discharged.
The rule to show cause why a writ of habeas corpus should not issue is made absolute, and the petitioner is ordered to be discharged from confinement.