COM. EX REL. NOVAK v. BANMILLER, 399 Pa. 496 (1960)

161 A.2d 9

Commonwealth ex rel. Novak, Appellant, v. Banmiller.

Supreme Court of Pennsylvania.May 3, 1960.
May 23, 1960.

Criminal law — Practice — Habeas corpus — Constitutional law — Procedural due process — Allegations requiring hearing.

In this habeas corpus proceeding instituted by a prisoner under sentence of death for murder in the first degree in which the relator alleged “Relator was given forcibly against his will and without his consent, a spinal test and a truth serum known as ‘sodium pentothal’ ” and “was prevented from telling the jury how he was beaten and forcibly made to submit to the spinal test and injection of truth serum because he was bound and gagged at the time of his trial” and “The trial judge failed to fix the date of execution”; and the court below dismissed the petition upon the basis of facts derived from court records in former proceedings involving the relator, it was Held, in view of the charges in relator’s petition, that procedural due process required a hearing on the petition at which the relator is represented by counsel and afforded an opportunity to support by evidence his allegations.

Before JONES, C. J., BELL, MUSMANNO, COHEN, BOK and EAGEN, JJ.

Appeal, No. 145, Jan. T., 1960, from order of Court of Common Pleas of Delaware County, June T., 1959, No. 1701, in case of Commonwealth ex rel. Edward Novak v. William J. Banmiller, Warden. Record remanded.

Habeas corpus.

Order entered dismissing petition, order by TOAL, J. Relator appealed.

Edward Novak, appellant, in propria persona.

Paul R. Sand, Assistant District Attorney, with him Jacques H. Fox, District Attorney, for Commonwealth, appellee.

Page 497

OPINION PER CURIAM, May 23, 1960:

The facts set forth in the opinion for the court below, in support of its denial of the relator’s petition for a writ o habeas corpus, were derived from court records in former proceedings involving the relator. It is our opinion that the charges contained in the relator’s present petition, now here on appeal, can be disposed of, consonantly with the requirements of procedural due process, only upon a hearing on the petition at which the relator is represented by counsel and afforded an opportunity to support by evidence the allegations of his petition.

It is therefore ordered that the record be remanded to the court below for a hearing and thereafter returned to this court as augmented by the lower court’s further findings and opinion as a result of such hearing.