Commonwealth v. Kincaid

Robert Kincaid pleaded guilty to an indictment charging robbery, and, on May 18, 1934, was sentenced to undergo an imprisonment of not less than 1 year or more than 5 years in the Allegheny County jail.

A petition for his parole has been filed, and hearing held. At the hearing nothing was brought out that had not been called to the attention of the court and carefully considered at the time sentence was imposed.

Robbery is one of the offenses which was excepted by the legislature from the provisions of the Probation Act of June 19,1911, P. L. 1055, which authorizes the placing of defendants on probation before sentence.

Sentence of imprisonment on conviction of robbery must be imposed, and Allegheny County is one of the few counties in the State where prisoners convicted of robbery and certain other penitentiary offenses can be committed to the county jail or to the workhouse. If they are committed to the penitentiary (as they are required to be committed in all counties except those having county prisons which were in 1860 at the passage of the Criminal Procedure Act or afterwards authorized by law to receive convicts sentenced to imprisonment at labor, by separate or solitary confinement), the court does not have the power of parole, and the Superior Court, in the case of Commonwealth v. Arbach, 113 Pa. Superior Ct. 137, 147, in an opinion by Judge Keller, said:

*673“A court of a county having this special and unusual authority to sentence persons convicted of the grosser crimes to the county prison instead of to the penitentiary, may well voluntarily limit the exercise of the parole privilege granted by the Act of 1911 (P. L. 1059) and its amendments, so as to bring it within the spirit of the Probation Act of 1911 (P. L. 1055), except in unusual circumstances calling for special leniency”.

So far as this court is concerned, it will be guided not only by the letter but also by the spirit of the opinion written by the learned judge of the Superior Court.

This petition does not call for any more leniency than was shown at the time of sentence. It therefore will be refused.

Order

And now, to wit, January 14, 1935, after hearing, the petition for a parole for Robert Kincaid is refused.