Opinion
September 29, 1943.
Criminal law — Sentence, — Lumping — Correction — Habeas corpus — Wantonly pointing revolver — Imprisonment — Penitentiary or county jail — Transfer — Acts of May 8, 1876, P.L. 146 and July 11, 1923, P.L. 1044.
1. Where a defendant is convicted on more than one count of an indictment and a lumped sentence embracing more than one count is imposed, the sentence, in a habeas corpus proceeding, will be reduced to the maximum sentence which could have been imposed under any one of the counts.
2. Under the Act of May 8, 1876, P.L. 146, which makes it a misdemeanor to wantonly point a revolver, the maximum imprisonment provided is one year's simple imprisonment.
3. In such case, a defendant cannot be sentenced to the penitentiary, and it is not material that the prisoner, while serving a prior sentence in a penitentiary, is transferred from a penitentiary to a county jail, pursuant to the Act of July 11, 1923, P.L. 1044.
4. Where a prisoner, while serving a sentence in a penitentiary, is transferred from the penitentiary to a county jail, pursuant to the Act of 1923, which authorizes the transfer, because of overcrowded conditions, etc., of prisoners confined in any penitentiary or prison to another prison or penitentiary, the prisoner is still regarded as a penitentiary prisoner and under the control of the penitentiary authorities as respects parole, etc., until he has been discharged under the indictment on which he was convicted and sentenced to the penitentiary.
Petition for writ of habeas corpus. Original jurisdiction, No. 5 Misc. Docket No. 259, in case of Commonwealth ex rel. Vincent Zambelli v. Herbert Smith, Warden. Relator remanded to court below for resentence.
Petition for writ of habeas corpus.
Petitioner was convicted in Lehigh County on four counts of indictment to No. 20 April Sessions, 1936, and was sentenced on June 1, 1936 to imprisonment in the Eastern State Penitentiary for not less than seven and one-half years nor more than fifteen years.
He was also convicted on four counts of indictment to No. 21 April Sessions 1936, and was sentenced the same day to imprisonment in the Eastern State Penitentiary for not less than six months nor more than one year, to take effect at the expiration of the sentence on No. 20.
The indictment to No. 20 contained twelve counts. Had a general verdict of guilty been rendered, the sentence imposed would have been within the law, for the second count charged robbery while armed with an offensive weapon, within section 100 of the Penal Code of 1860, P.L. 382, as amended by Act of April 18, 1919, P.L. 61, which authorized a maximum imprisonment in the penitentiary for twenty years. See Com. ex rel. Otten v. Smith, 126 Pa. Super. 238, 240, 190 A. 525. But the verdict was not a general one. Defendant was found guilty on counts one, five, six and seven, which charged offenses punishable respectively under: (1) the Act of April 22, 1863, P.L. 531, as amended by Act of March 13, 1901, P.L. 49, (entering by day with intent to commit a felony); (5) section 102 of the Penal Code of 1860 (robbery); (6) section 103 of said Penal Code (larceny); (7) Act of April 23, 1909, P.L. 159 (receiving stolen goods). The severest penalty that could be imposed under any of said counts was under count one, entering by day with intent to commit a felony, the maximum imprisonment for which was ten years in the penitentiary. A lumping sentence embracing all four counts could not be imposed: Com. ex rel. Hallett v. McKenty, 80 Pa. Super. 249, 250; Com. ex rel. Rogers v. Ashe, Warden, 133 Pa. Super. 364, 3 A.2d 45; Halderman's Petition, 276 Pa. 1, 119 A. 735. The sentence on No. 20, accordingly, will be reduced to imprisonment in the penitentiary for not less than five years nor more than ten years, to be computed from June 1, 1936. The Act of May 28, 1937, P.L. 1036, had not been enacted when sentence was imposed.
The charge contained in all the counts of the indictment to No. 21 was wantonly pointing a revolver (Act of May 8, 1876, P.L. 146). The maximum imprisonment provided in that act is one year's simple imprisonment. Hence defendant could not be sentenced to the penitentiary on that indictment. The sentence should have been for a definite term, not exceeding one year, in the Lehigh County jail. The fact that relator, while serving his sentence under No. 20, was transferred from the penitentiary to the Lehigh County jail, pursuant to the Act of July 11, 1923, P.L. 1044, is of no moment. He is still regarded as a penitentiary prisoner and under the control of the penitentiary authorities as respects parole, etc., until discharged under No. 20. See Com. v. Harradine, 148 Pa. Super. 451, 25 A.2d 576. He will be remanded to the court below for re-sentence on indictment No. 21.