Dissenting Opinion by
Me. Justice Musmanno :I do not find any authority for the correction by one court of an error in the records of a totally different court. The relator Clarence E. Tanner was tried in the Court of Oyer and Terminer of Allegheny County. Following that trial he was taken to the Western Penitentiary. The natural assumption would be that, some time prior to his removal to the penitentiary, he was duly sentenced by a judge. The records in the Oyer and Terminer Court, however, do not show that to be a fact. There is a notation to the effect that a sentence was imposed on Clarence E. Tanner, but there is no indication that this Clarence E. Tanner was present to receive the sentence. If in fact he was not present when sentence was passed, his current confinement in Western Penitentiary is illegal. If he was present at the time of sentencing, and that fact *436can be shown properly, a correction must be made in the records in the Court of Oyer and Terminer of Allegheny County. This has not been done.
I do not believe that these present proceedings will settle the matter and I have no doubt that when Tanner finds time hanging heavy on his hands in the penitentiary, which could be almost any day, he will fashion another petition for a writ of habeas corpus, point to the undeniable fact that the records of the Oyer and Terminer Court still have him absent at the time of sentencing and demand that upon that showing he be released.
At a hearing in the Court of Common Pleas, oral testimony was received to the effect that Tanner was actually in Court when the sentence was imposed. The defendant himself flatly denied this representation. On this disputed testimony the Court of Common Pleas came to the conclusion that the defendant must have been present at the time of sentencing and thus denied the writ. This Court affirms the decision of the Court of Common Pleas but the void in the records of the Court of Oyer & Terminer still remains. The decision of the Court of Common Pleas in this matter was utterly nugatory and this Court has affirmed a vacuum. Tanner’s fate is written in the records of the criminal courts and not in the civil courts of Allegheny County. Those records of the criminal courts show that he is being held in prison illegally, and thus the matter stands at this very moment.
As recently as April 22, 1952, this Court, speaking through Mr. Justice Bell, categorically stated: “The law is clearly settled as stated by Chief Justice Maxey in Commonwealth v. Johnson, 348 Pa. 349, 35 A. 2d 212: ‘The principle has long been established in our criminal jurisprudence that in capital cases the record must show that the prisoner was present at the trial, *437verdict and at the passing of the sentence: Dunn v. Com., 6 Pa. 384 . . . This principle was reiterated in Com. v. Silcox, 161 Pa. 484, 496, 29 A. 105, where we said: “In capital cases the record must show affirmatively that the prisoner was present at every stage of the proceedings against him.” ’ We must, therefore, examine the record to determine whether it affirmatively shows that the prisoner was present at the arraignment, trial, verdict, sentence, and at every stage of the proceedings against him.” (Emphasis supplied.)
In the Johnson case referred to by Mr. Justice Bell, Chief Justice Maxey referred to the case of Dunn v. Com., 6 Pa. 384, and said: “What was said by this court in that case is applicable here. ‘This [case] presents a state of confusion and uncertainty in the record which cannot be relieved by any justifiable presumption, in a case involving the life of a fellow-being.’ ”
The case at bar has fallen into the state of confusion and uncertainty referred to in the Dunn case.
In the Johnson case, Chief Justice Maxey quoted from Reagen et ux. v. Reading Co., 126 Pa. Superior Ct. 175, 184, 190 A. 412: where it was said: “We can look only to the record in this case . . . and we cannot permit conjecture to supply what the evidence does not contain.”
Looking at the records in the Oyer and Terminer Court in the case at bar, one can only conjecture that the defendant must have been present when the judge pronounced sentence. The affirmance of that conjecture by the Court of Common Pleas, and the imprimatur by this Court of that conjecture, does not place it on any higher level of juridic reliability than conjecture.