
    Commonwealth ex rel. Smith, v. Smith, Warden
    
      A. Archer Cross, with him Henry D. O'Connor, for petitioner.
    
      James W. Tracey, Jr., Assistant District Attorney, for Commonwealth.
    December 21, 1936:
   Per Curiam,

The relator pleaded guilty in Philadelphia County to an indictment charging larceny, and was sentenced to the Eastern State Penitentiary for a term of not less than four years nor more than eight years. The maximum sentence authorized by law was three years (Act of March 31, 1860, P. L. 382, Sec. 103).

After serving four years he was paroled. While on parole he pleaded guilty in Luzerne County to an indictment charging him with felonious wounding, aggravated assault and battery, and simple assault and battery. The court postponed sentence pending his return to the Eastern State Penitentiary, to serve the remainder of his original sentence, for breach of his parole. (Com. ex rel. Meinzer v. Smith, 118 Pa. Superior Ct. 250).

He then filed his petition praying for a writ of habeas corpus.

The original maximum sentence exceeded that authorized by law by five years. Relator has already served one year more than the maximum to which he could be legally sentenced. The violation of his parole could not require him to serve the remainder of his excessive sentence.

He is entitled to be discharged from the Eastern State Penitentiary, but will be remanded to the Sheriff of Luzerne County for sentence on the indictment to which he entered a plea of guilty. The Luzerne County Court, in imposing sentence, will no doubt, give proper consideration to the facts above related.

Relator is discharged from custody as to his sentence for larceny, but remanded to the Sheriff of Luzerne County for sentence according to law.  