#### Commonwealth ex rel. Powers *v.*Smith, Warden.

*162January 30, 1940:

Pee Cueiam,

This is a petition for writ of habeas corpus. The relator, on October 6, 1924, was committed to the penitentiary by the Court of Oyer and Terminer of Chester County, following his plea of guilty1 to five indictments returned at the October Sessions of said Court, to wit, No. 1, for burglary of the dwelling house of George W. Howard and a separate indictment to the same number and term for larceny; No. 2, for burglary of the dwelling house of Susanna Moses; No. 3, for burglary of the dwelling house of Harry L. Detweiler and a separate indictment to the same number and term for larceny.

The commitments showed the sentences to be consecutive. Relator claims they were concurrent because certain pencil memoranda on some of the indictments made no note of the sentences being consecutive. The pencil notes or memoranda were unsigned and were as follows: (1) On the *larceny*indictment to No. 1, October Sessions 1924, “100 fine not more than 8 yrs or less than 4 yrs”; (2) on the *burglary*indictment to No. 2, same sessions, “10-6-1924 Heft Plead guilty Judge Butlee sentenced deft to pay a fine of 100 and costs serve not more than 8 yrs or less than 4 yrs in Eastern pen at solitary hard labor”; (3) on the *burglary*indictment to No. 3, same sessions, “10-6-1924 10 yrs or less than 5 yrs.”

The district attorney, with his answer, has forwarded to us a certified copy of the entry on the ‘Scratched of the docket of the court of quarter sessions, being the minute book or original entry book kept by the Clerk of the Courts of Chester County, relative to said court proceedings above referred to, which is as follows:

> “1, 2, and 3 October Sessions 1924

> *163“Commonwealth v. James Powers The second sentence to operate at expiration of first and third to operate at expiration of second. Charge Burglary and Larceny, Burglary, Burglary and Larceny, 10/6/24 Defendant plead guilty 10/6/24 Judge Butler sentenced defendant for Burglary and Larceny of Harry Detweiler’s residence, to pay a fine of $100 and costs, to serve not more than 10 years or less than 5 years in Eastern Penitentiary at hard labor and in solitary confinement — also sentenced defendant for Burglary and Larceny at George Howard’s residence, to pay a fine of $100 and costs, to serve not more than 8 years or less than 4 years in Eastern Penitentiary — also sentenced defendant for Burglary of Susan Moses residence, to pay a fine of $100 and costs, to serve not more than 8 years or less than 4 in the Eastern Penitentiary.”

The entry in Oyer and Terminer Docket #4, page 403, a certified copy of which was also forwarded to us, is as follows:

> “Commonwealth v. James Powers Burglary and Larceny at homes of Harry Detweiler, George Howard, and Susan Moses

> “October 6, 1924, Grand Jury True Bill. Same day defendant, being arraigned, plead guilty to all bills. Judge Butler sentenced defendant as follows:

> “Burglary and Larceny at home of Harry Detweiler, Fine of $100 and costs and serve not more than 10 years nor less than 5 years in Eastern State Penitentiary; at expiration of this sentence, to pay a fine of $100 and costs and serve not more than 8 years nor less than 4 years in Eastern State Penitentiary for Burglary and *164Larceny at home of George Howard; at expiration of this sentence to pay a fine of $100 and costs and serve not more than 8 years nor less than 4 years in Eastern State Penitentiary for Burglary and Larceny2 at home of Susan Moses. Solitary confinement, hard labor.”

We are of opinion that the informal pencil memoranda roughly scribbled on the backs of the three indictments above-mentioned were not the official record of the sentences, but only notes intended to aid the recollection of the clerk; and that the entry in the ‘Seratcher,’ followed by the entry on the Docket of the Court constitute the record in these cases and justify the commitment for consecutive sentences, to wit, Sentence on indictment to No. 3 October Sessions 1924, relating to the burglary of the home of Harry Detweiler, for a maximum Imprisonment of ten years and minimum of five years; to be followed by sentence on indictment to No. 1 October Sessions 1924, relating to the burglary of the home of George Howard, for a maximum imprisonment of eight years and minimum of four years; to be followed by sentence to No. 2 October Sessions 1924, relating to the burglary of the home of Susanna Moses, for a maximum imprisonment of eight years and a minimum of four years.

Buie discharged and petition dismissed.

1

 Endorsed and signed in ink on the indictments.

2

 The erroneous reference here to an indictment for larceny in No. 2 October Sessions 1924 did the relator defendant no harm.