
    Commonwealth v. Cohen, Appellant.
    
      Habeas corpus — Summary conviction — Magistrate’s record.
    
    Where a person has been committed on a summary conviction before a magistrate, defects in the magistrate’s record are immaterial and will not be considered on a hearing in habeas corpus proceedings.
    
      Criminal law — Summary conviction — Discharge on parol — Sentence — Words and phrases — "Modify”—Appeals—Procedendo— Besentence.
    
    Where a person has been sentenced to imprisonment for six months on a summary conviction before a magistrate, and over one month thereafter the prisoner is discharged on probation for one year, the Court of Quarter Sessions has no jurisdiction, one month after the last order was made, to commit the prisoner to prison “to serve the balance of the period of probation,” inasmuch as such sentence would operate to make the prisoner serve an imprisonment of over ten months when she was originally only committed for six months by the magistrate. The imposition of such a sentence creates a new thing, viz: an additional term of imprisonment, and is not a modification of the commitment within the meaning of the 19th Section of the Act of June 2, 1871, P. L. 1301, which gives to the Quarter Sessions in habeas corpus proceedings the power to “either discharge the individual,' modify or confirm the commitment.”
    In such a case the appellate court in reversing the order of the Quarter Sessions will do so with a procedendo and with a direction to the court below to recommit the prisoner to six’months imprisonment, or any part thereof that had not been performed at the time the appeal was made a supersedeas.
    Argued March 15, 1916.
    Appeal, No. 383, Oct. T., 1915, by defendant, from order of Q. S. Philadelphia Co.,' June T., 1915, No. 2, committing defendant to imprisonment in case of Commonwealth v. Minnie Cohen.
    
      Before Orlady, P. J., Henderson, Kephart, Trexler and Williams, JJ.
    
    Reversed.
    Summary conviction and order of commitment.
    The facts appear by the opinion of the Superior Court.
    
      Error assigned was the order of July 19, 1915, quoted in the opinion of the Superior Court.
    
      William T. Connor, with him John R. K. Scott, for appellant.
    The conviction before the magistrate cannot be sustained: Com. v. Nesbet, 34 Pa. 398; Com. v. Borden, 61 Pa. 272; Com. v. Gelbert, 170 Pa. 426; Com. v. Davison, 11 Pa. Superior Ct. 130; Com. v. Cannon, 32 Pa. Superior Ct. 78; Newcastle v. Genkinger, 37 Pa. Superior Ct. 21; Com. v. Divoskein, 49 Pa. Superior Ct. 614; Com. v. Moller, 50 Pa. Superior Ct. 366.
    The court below was without authority to increase the sentence imposed by the magistrate.
    
      Joseph E. Taulane, Assistant District Attorney, with him Samuel P. Rotan, District Attorney, for appellee.
    On habeas corpus from a summary conviction defects in the magistrate’s record cannot be taken advantage of: Com., ex rel., v. Superintendent of House of Correction, 22 Pa. Dist. 92; Com. v. Supt. House of Correction, 19 Pa. Dist. 1051.
    The court had authority to increase the sentence imposed by the magistrate.
    July 18, 1916:
   Opinion by

Williams, J.,

Appellant, after a hearing on May 8, 1915, before Magistrate Carson, was convicted of being disorderly by street walking and sentenced to six months imprisonment in the house of correction. A writ of habeas, corpus was allowed by the Court of Quarter Sessions and after a hearing on June 18,1915, before Bechtel, J., the prisoner was discharged on parol for one year. On July 19, 1915, the court, without giving the appellant a hearing, made the following order: “And now, July 19, 1915, it appearing to the court that defendant placed on probation June 30, 1915, has been arrested on a similar offense. It is hereby ordered that order of June 30,1915, be revoked and defendant committed to the house of correction to serve the balance of the period of probation.” On Sept. 1, 1915, appellant having been brought before the court on a bench warrant, she was committed in open court to serve the balance of the term of parol in the house of correction, in compliance with the order of July 19,1915.

The first contention of the appellant is that the Court of Quarter Sessions should have discharged the prisoner because the record of the magistrate’s hearing was not sufficient to sustain a summary conviction. The magistrate’s transcript is not printed in the appellant’s paper book and there is nothing in the record to show that it was irregular. The commitment of the prisoner does not constitute the whole record of proceedings before a magistrate. An objection to the magistrate’s record might well have been taken on certiorari, but-since in habeas corpus proceedings the Court of Quarter Sessions enters upon a rehearing of the evidence-under Section 13, Act of June 2,1871, P. L. 1301, formal defects in the magistrate’s record become immaterial, as the case is there reheard on its merits and the prisoner held or discharged on the evidence, not the magistrate’s record.

The second contention of the appellant is that the Court of Quarter Sessions in releasing on parol for one year and in subsequently committing the appellant to the house of correction for the balance of her term of probation, exceeded its authority. Such sentence would operate to make the appellant serve over ten months in the house of correction, when she was originally only committed for six months by the magistrate.

The 13th Section of the Act of June 2,1871, P. L. 1301, conferring jurisdiction on the court,, provides as follows: “Any person committed to the said house of correction, employment and reformation, by any other authority than the Court of Quarter Sessions of the peace of the City and County of Philadelphia, may apply for a writ of habeas corpus to any judge of the said court, and upon return thereof, if such judge shall deem there is sufficient or reasonable ground for granting the same, he shall enter upon a rehearing of the evidence, and either discharge the individual, modify or confirm the commitment.”

In a similar use of the word “modify” in State v. Tucker, 36 Or. 291, 51 L. R. A. 246, it was defined as follows : “ ‘Modify’ means to change or vary, to qualify or reduce”; and the “power given to modify......implies a. subject-matter to be modified......When exercised to modify, it does not destroy identity, but effects some change or qualification in form or qualities, power or duties, purposes or objects, of the subject-matter to be modified, without touching the mode of creation. The word implies no power to create or bring into existence, but only the power to change or vary in some particular an already created or legally existing thing.” It would follow that the court in the present case had not modified, but had created a new thing, viz, an additional term of imprisonment.

Moreover, the discharge of the prisoner in the habeas corpus proceedings was not in the exercise of the power to suspend sentence under the Act of June 19, 1911, P. L. 1055, for the prisoner had already been sentenced. It was made under the authority of the Act of June 19, 1911, P. L. 1059, which provides as follows: “The judges of the Courts of Quarter Sessions and the Courts of Oyer and Terminer of the several judicial districts of the Commonwealth are authorized after .due inquiry, to release on parole any convict confined in the county jail or workhouse of their respective districts, and place him or her in charge of and under the supervision of a designated probation officer; and shall have power to recommit to jail or workhouse, on cause shown by such probation officer that such convict has violated his or her parole, and to reparole if, in the judgment of the said judge, there is a reasonable probability that the convict will be benefited by again according liberty to such convict; and also to again recommit for violation of such parole. This power shall not extend beyond the limit of the sentence which shall have been first imposed on the prisoner.”

The manner of exercising the powers conferred by this act is left to the discretion of the court after due inquiry into the circumstances and conditions of the case. It is plain, however, that in committing to imprisonment under the act, the court is limited to the sentence first imposed on the prisoner and in the present case, the first sentence was for six months in the House of Correction by the magistrate. The court was clearly in error in imposing the sentence appealed from, but it is our practice to reverse such sentence without affecting the trial and conviction: Com. v. Barge, 11 Pa. Superior Ct. 164; Com. v. Shoener, 25 Pa. Superior Ct. 526; Com. v. Lewis, 29 Pa. Superior Ct. 282.

It is ordered that the order of the Court of Quarter Sessions be reversed; and the record be remitted to that court with a procedendo, and that defendant, appellant, appear in the court below at such time as she may be there called and that she be by that court committed until she has complied with the sentence imposed by Magistrate Carson, viz, six months in the House of Correction, or any part thereof that has not been performed at the time this appeal was made a supersedeas.  