Criminal Law — Practice — Habeas corpus — Writ as substitute for appeal — Sufficiency of evidence — Credibility of witnesses — Use of prior criminal record by trial judge in determining sentence.
1. The writ of habeas corpus may not be used as a substitute for an appeal.
2. In a habeas corpus proceeding, in which it appeared that petitioner attacked the sufficiency of the evidence upon which his convictions were based and raised questions of the credibility of certain witnesses, it was Held that the matters complained of were such as were reviewable only upon appeal and that the petition was properly dismissed by the court below.
3. Relator's further complaint that the court below made use of his prior criminal record in determining sentence was Held to be without merit.
Submitted December 15, 1960.
OPINION BY WATKINS, J., March 22, 1961:
This is an appeal from the order of President Judge CARROLL, of the Court of Common Pleas No. 5 of Philadelphia County, dismissing, without a hearing, a writ of habeas corpus. The petitioner, Patrick Bouknight, was indicted for aggravated robbery, conspiracy, assault and battery and aggravated assault and battery, respectively. He waived a jury trial and was tried and found guilty before Judge MACELREE, sitting specially, on October 8, 1959. He was sentenced on the robbery bill for a period of four to eight years, plus a fine of $500 and costs. Sentence was suspended on the other bills. He did not take an appeal from the judgment of sentence but filed this petition for writ of habeas corpus on August 1, 1960.
The allegations contained in the petition attacked the sufficiency of the evidence upon which the convictions were based; raised questions of the credibility of certain witnesses; and complained of the use, by the court below, of his prior criminal record to determine the penalty.
"The matters complained of herein are such as are reviewable only on appeal. Petitioner cannot, therefore, now avail himself of habeas corpus as a remedy since the writ may not be used as a substitute for an appeal." Com. ex rel. Wilkins v. Banmiller, 401 Pa. 347, 164 A.2d 333 (1960). As to the complaint concerning the use of his prior criminal record by the trial court in determining sentence, it is unnecessary to comment further than to say it is manifestly without merit.
Order affirmed.