Habeas corpus — Criminal law — Appeals — Nonprossed — Res judicata — Appeal to Supreme from Superior Court.
Where a defendant in a criminal case takes an appeal to the Superior Court, and such appeal is nonprossed on his own motion, and thereafter the same court in effect dismisses his motion for a writ of habeas corpus, he cannot complain of such dismissal, inasmuch as he could have had reviewed, on the appeal which he had nonprossed, the validity of his confinement which was based on matters inherent in the sentence itself, and therefore apparent on the face of the record.
PER CURIAM, November 27, 1929:
The fundamental question which the relator seeks to have passed on by his application for the allowance of an appeal from the action of the Superior Court of Pennsylvania, which in effect dismissed a petition for a writ of habeas corpus, filed by him, goes to the validity of his confinement under the sentence which he is now serving, and as the grounds on which he depends are matters inherent in the sentence itself, and, therefore, apparent upon the face of the record, they could have been reviewed on the appeal taken by the relator to the Superior Court, which was nonprossed on his motion, prior to his petition for habeas corpus. Relator had his opportunity by appeal to attack the sentence and his confinement thereunder, and cannot make them the subject of collateral attack by habeas corpus: Com. ex rel. v. Keeper of County Prison, 295 Pa. 252.
The application for appeal from the Superior Court is denied.