Opinion
September 27, 1954.
March 29, 1955.
Criminal law — Habeas corpus — Substitute for appeal — Violation of parole — Question for juvenile court — Conviction in oyer and terminer set aside.
1. Where it appeared that relator had been adjudged a delinquent by the juvenile court, committed, and upon his subsequent release placed on probation; that later he was convicted of larceny and burglary, and from the sentence imposed by the court of oyer and terminer appealed; that relator was recommitted by the juvenile court on the ground that he had violated probation; that relator sought his release by habeas corpus, but, after a hearing in common pleas, the petition was dismissed; that the defendant appealed, alleging that the revocation of probation was based on insufficient evidence; and that, subsequently, the appellate court granted a new trial in the case tried in oyer and terminer court; it was Held that (a) violation of relator's probation was a matter for the juvenile court and did not necessarily depend upon his conviction in the case tried in the court of oyer and terminer; and (b) relator was not properly before the appellate court in the habeas corpus case.
2. A writ of habeas corpus is not a substitute for an appeal.
Criminal law — Final or interlocutory order — Order terminating probation and recommitting defendant — Juvenile Court Law.
3. An order of the juvenile court terminating defendant's probation and recommitting him is a final order from which he has the right of appeal as a matter of right: Juvenile Court Law of June 2, 1933, P. L. 1433, § 15.
Before RHODES, P.J., HIRT, ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, JJ.
Appeal, No. 157, Oct. T., 1954, from order of Court of Common Pleas of Chester County, Jan. T., 1954, No. 40, in case of Commonwealth of Pennsylvania ex rel. Chester McQueen v. A. L. Prasse, Superintendent et al. Appeal dismissed.
Habeas corpus proceeding. Before WINDEL, P.J.
Order entered dismissing rule. Relator appealed.
William E. Parke, for appellant.
John E. Stively, Jr., Assistant District Attorney, with him Joseph G. McKeone, District Attorney, for appellee.
Argued September 27, 1954.
This is an appeal from an order of the court below dismissing a rule to show cause why a writ of habeas corpus should not issue. The defendant had been adjudged a delinquent by the Juvenile Court in April 1951 and was committed until August, 1952. Upon his release he was placed on probation. In December 1953 he was sentenced by the Court of Oyer and Terminer on convictions of larceny and burglary, which sentence was appealed to this Court. When the defendant was released on bail pending the appeal of the larceny and burglary sentence, he was immediately recommitted by the Juvenile Court on the ground that he had violated probation. He sought his release by habeas corpus but, after a hearing in Common Pleas, the petition was dismissed. The defendant has appealed alleging that the revocation of probation was based on insufficient evidence.
In an opinion filed this date we granted a new trial in the case tried in Oyer and Terminer Court. See Com. v. McQueen, 178 Pa. Super. 38, 112 A.2d 820. It does not follow, however, that the writ in this case was improperly denied. Violation of his probation was a matter for the Juvenile Court, and does not necessarily depend upon his conviction in the case tried in the court of Oyer and Terminer.
The defendant is not properly before us in this habeas corpus case. The order of the Juvenile Court terminating defendant's probation and recommitting him was a final order from which he had the right of appeal as a matter of right: The Juvenile Court Law of June 2, 1933, P.L. 1433, § 15, 11 P. S. § 257. It is well settled that a writ of habeas corpus is not a substitute for an appeal: Com. ex rel. Tokarchik v. Claudy, 174 Pa. Super. 509, 102 A.2d 207.
The appeal is dismissed.