
    Commonwealth v. Simmons.
    
      Frank X. Renninger, for Commonwealth.
    
      Theodore Lane Bean, for defendant.
    April 23, 1928.
   Williams, P. J.,

The district attorney should not have joined in asking that the prisoner be paroled because, in Com. v. Thomas, February Term, 1925, No. 34, at the time of refusing the application, we said:

“The Acts of June 19, 1911, P. L. 1055, generally known as the ‘Probation Act,’ and P. L. 1059, commonly called the ‘Parole Act,’ must be construed together with reference to the general system of which they form integral, although separate, parts. Particularly is this true in view of the fact that both statutes were enacted on the same day. In substance, even if not in form, the Parole Act is a supplement to the Probation Act. Hence, since by the terms of the Probation Act the court is powerless, in the first instance, to suspend the imposition of sentence upon one convicted of the crime of murder, the court is without power, also, later to parole such a convict.
“The belief, unfortunately only too generally accepted, that the court at discretion can parole in any case is fundamentally erroneous. To the contrary, the discretion of the court in the grant of paroles is only a judicial discretion, to be exercised solely in those cases in which it was the intention of the legislature the court should have the right to parole.
“The legislature never intended a murderer to be paroled. His crime involves legal malice, moral turpitude and heart wickedness. Men of good moral character do no murder. Men of bad character, if opportunity arise, are likely to repeat the offense. The power to make a general jail delivery of imprisoned Cains is not vested in the courts. See Com. v. Burr et al., 5 D. & C. 172-4 (1924), Cummins, J. (27th District, Washington County), and Com. v. Roberts, 6 D. & C. 342 (1924), Reno, P. J. (31st District, Lehigh County).”

And now, April 23, 1928, upon consideration of the foregoing case, it is ordered, adjudged and decreed as follows: The petition is dismissed.

Prom Aaron S. Swartz, Jr., Norristown, Pa.  