Opinion
November 14, 1956.
December 28, 1956.
Criminal law — Practice — Habeas corpus — Proceedings before magistrate or grand jury — Consolidation for trial of indictments — Trial errors — Necessity of hearing — Due process — Selection of jury — Circumstances.
1. Regularity of proceedings before a magistrate or a grand jury cannot be questioned by writ of habeas corpus.
2. The consolidation for trial of indictments cannot be raised on habeas corpus.
3. A writ of habeas corpus does not lie for the mere questioning of alleged errors during or prior to the trial.
4. A petition for a writ of habeas corpus which raises no legally material issue requiring determination by the court is properly dismissed without a hearing.
5. In a habeas corpus proceeding, relator's contention that he was denied due process of law because he was denied the right to be present and to take part in the selection of the jury which tried him, was Held, in the circumstances, to be without merit.
Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and CARR, JJ.
Appeal, No. 135, April T., 1956, from order of Court of Common Pleas of Erie County, May T., 1956, No. 134, in case of Commonwealth of Pennsylvania ex rel. Raymond Simcox v. Frank C. Johnston, Warden, Western State Penitentiary. Order affirmed.
Habeas corpus.
Order entered dismissing petition, opinion by ROBERTS, P.J., specially presiding. Relator appealed.
Raymond Simcox, appellant, in propria persona.
Herbert J. Johnson, Jr., District Attorney, for appellee.
Submitted November 14, 1956.
This is the second appeal to this Court by relator from the dismissal of a petition for writ of habeas corpus by the Court of Common Pleas of Erie County. On his previous appeal we sustained the order of the court below. Com. ex rel. Simcox v. Johnston, 180 Pa. Super. 193, 119 A.2d 812.
Relator's last petition contains the same averments as were set forth in his previous petition. With one exception they are merely variations of his previous allegations, which were found to be without merit. Relator now contends that he was denied due process of law because he was denied the right to be present and take part in the selection of the jury which tried him. This is contrary to the trial record. See Com. ex rel. Chambers v. Claudy, 171 Pa. Super. 115, 117, 90 A.2d 383. Moreover, relator admits that he was in the court room at the time the jury was selected. At his trial on September 14, 1953, in the Court of Quarter Sessions of Erie County relator was represented by counsel. He was present throughout his trial, and was deprived of no constitutional right in the selection of jurors or otherwise. See Com. v. Bova, 180 Pa. Super. 359, 362, 119 A.2d 866.
Regularity of proceedings before a magistrate or a grand jury cannot be questioned by writ of habeas corpus. Com. ex rel. Musser v. Day, 180 Pa. Super. 191, 119 A.2d 811. Likewise, the consolidation for trial of indictments cannot be raised on habeas corpus. Com. ex rel. Haines v. Burke, 173 Pa. Super. 477, 481, 98 A.2d 208. A writ of habeas corpus does not lie for the mere questioning of alleged errors during or prior to the trial. Com. ex rel. Townsend v. Burke, 361 Pa. 35, 41, 63 A.2d 77; Com. ex rel. O'Halloran v. Burke, 176 Pa. Super. 477, 107 A.2d 577.
This is relator's third petition for writ of habeas corpus. In substance the same averments have been before the court below on three occasions, and before this Court for the second time. The petition was properly dismissed without a hearing as it raised no legally material issue requiring determination by the court. Com. ex rel. Collins v. Claudy, 170 Pa. Super. 199, 85 A.2d 663; Com. ex rel. Wolcott v. Burke, 173 Pa. Super. 473, 476, 98 A.2d 206; Com. ex rel. Luzzi v. Tees, 176 Pa. Super. 528, 108 A.2d 921.
The order dismissing petition for writ of habeas corpus is affirmed.