
    Commonwealth ex rel. Finan v. Ashe, Warden.
    
      February 13, 1941:
   Opinion by

Keller, P. J.,

Neither of the two reasons presented by the relator as ground for his discharge from imprisonment in the penitentiary justifies his release.

1.. The Indictments’ to which the relator, under the name Charles Leo Finan, pleaded guilty and on which he was sentenced to the penitentiary, Nos. 244 and 244a May Sessions 1938, Quarter Sessions of Westmoreland County, were drawn under the 23d section of the Act of March 31, 1860, P. L. 382 (18 PS §2934) and each one charged in the language of the statute that he "did......unlawfully and knowingly send, utter and deliver, and did cause to be sent, uttered and delivered a certain writing, to wit, a certain letter, addressed to Mrs. Rumbaugh at 1614 Poplar Street, S. Greensburg, Pennsylvania, threatening to take the life of the said Mrs. Rumbaugh and her family unless she paid to the said Charles Leo Finan [and his co-defendants] the sum of $5000, being the money and property of her, the said Mrs, Rumbaugh, with intent and with a view to extort money from the said Mrs. Kumbaugh by means of such threatening letter.” The ‘indictments’ did not charge or aver that said letters were sent or delivered through the United States mail; and as he pleaded guilty and there was no trial, and no testimony was taken or transcribed by the court stenographer, there is nothing in the record to show that the letters were sent or delivered through the mail, or that he was guilty of the offense of mailing threatening communications with intent to extort money, etc., made punishable by section 338a of Title 18 of the Judicial Code of the United States, as amended by Act of Congress of June 28, 1935, c. 326, 49 Stat. 427, the penalty for which is a fine of not more than $5000 and imprisonment for not more than twenty years.

2. This relator, under the name Charles Finan signed a paper in the following form:

“In the Court of Quarter Sessions of the Peace, for the County of Westmoreland, Commonwealth of Pennsylvania
“Commonwealth v. Charles Leo Finan r
No. 244 to 244d inclusive, May Sessions, 1938
Charge: Sending Threatening Letters
Pros. J. R. Dodson, Penna. Motor Police.
“And Now May 19th 1938, I, Charles Leo Finan, the defendant above named hereby acknowledge that I am guilty of the above charge, and will so plead when called for trial; and further, I waive the finding of a bill of indictment against me and do plead guilty and, hereby ask for sentence to all intents and purposes as if a true bill of indictment had been found against me by the Grand Jury.
(Signed) Charles Finan
Witness:
George S. Wasconis
Jackson R. Dodson”

Pursuant to said paper the district attorney prepared five ‘indictments’ under the Act of April 15, 1907, P. L. 62, to wit, Nos. 244, 244a, 244b, 244c, 244d, May Sessions 1938 and the said paper so signed by relator was permanently attached to Indictment No. 244 and on the back thereof was endorsed the following:

“May 19, 1938 Defendants being arraigned pleads guilty.
William M. Berlin,
Clerk”

The certified copy of the record and docket entries sent up with the papers shows that the relator appeared in open court on May 19, 1938 and pleaded guilty to all five indictments, but was sentenced by Judge Richard D. Laird on only two of them, viz., on No. 244 to imprisonment in the Western Penitentiary for a period of not more than three years or less than eighteen months; and on No. 244a for not more than three years or less than eighteen months to begin at the expiration of sentence on No. 244 May Sessions, 1938.

Under our rulings in Com. ex rel. Krannacher v. Ashe, 142 Pa. Superior Ct. 162, 15 A. 2d 855; Com. ex rel. Banky v. Ashe, 142 Pa. Superior Ct. 396, 16 A. 2d 668; Com. ex rel. Conrad v. Ashe, 142 Pa. Superior Ct. 254, 15 A. 2d 926; and our orders in Com. ex rel. Kemnitzer v. Ashe, No. 157 Miscellaneous Docket, Pittsburgh District, filed December 11, 1940, (not reported), appeal refused by the Supreme Court on January 14, 1941; and Com. ex rel. Fordyce v. Ashe, No. 158 Miscellaneous Docket, Pittsburgh District, filed December 11, 1940, (not reported), the records here brought up show a substantial compliance with the Act of 1907, supra.

The rule is discharged and the petition denied.  