Commonwealth v. Francies

Citations

• 67 Pa. Super. 588
• 1917 Pa. Super. LEXIS 462

Syllabus

<p>Criminal law — Conspiracy to cheat — Improper sentence.</p> <p>Where a person is convicted of conspiracy to cheat and defraud without the record showing that he had actually defrauded any one, or stolen any property, it is error for the court to incorporate in the sentence a direction that the defendant shall “restore the property stolen, if not already restored, or pay the owner the value thereof.”</p> <p>In such a case a sentence for ,a period of “not less than one year” in the penitentiary is not in conformity with the law. Under the Act of March 31, 1860, Sec. 128, P. L. 413, punishment for the offense is a fine of not more than $500, and either simple imprisonment, or imprisonment by separate or solitary confinement at labor not exceeding two years. Section 6 of the Act of June 19, 1911, P. L. 1055, provides that a maximum, not exceeding that fixed by the act under which the conviction is had, as well as a minimum shall be fixed by the sentence of the court.</p> <p>It is mere surplusage to incorporate in a sentence of imprisonment in the penitentiary the words “there to be kept, fed, clothed and treated as the law directs.”</p> <p>Where a prisoner has been convicted of conspiracy to cheat and defraud without the record showing that he had defrauded any one or stolen any property, and he is sentenced to confinement in prison for a period of “not less than one year,” “there to be kept, fed, clothed and treated as the law directs,” and is directed to “restore the property stolen” the Superior Court on original habeas corpus proceedings will direct that the record be remitted, and that the defendant be resentenced according to law, and that in such sentence due allowance shall be made by the court for the punishment already suffered.</p>