United States v. Lowrey
| Citation | 77 F. Supp. 301 |
| Decision Date | 26 April 1948 |
| Docket Number | Cr. No. 12661. |
| Parties | UNITED STATES v. LOWREY. |
| Court | U.S. District Court — Western District of Pennsylvania |
Edward C. Boyle, Asst. U. S. Atty., of Pittsburgh, Pa., for plaintiff.
James Edgar Lowrey, pro se.
The defendant was convicted of transporting a car from Greensburg, Pennsylvania, to Wheeling, West Virginia, knowing the same to have been stolen. He now, appearing pro se, moves for a new trial on a number of grounds which may be briefly stated as follows:
1. The trial judge did on September 9, 1947, "express his opinion; on a petition for a Writ of Habeas Corpus; Said Writ was granted in favor of the petitioner."
2. Double jeopardy.
3. Did not have counsel of his own choosing.
4. Counsel did not have time to prepare case.
5. Government witnesses were prejudiced and gave false testimony.
This defendant was originally sentenced on this same charge (Information No. A-5815) in the District Court of the United States for the Northern District of West Virginia on a plea of guilty. He was committed to the United States Penitentiary at Lewisburg, Pennsylvania. While serving this sentence he filed a petition for a Writ of Habeas Corpus in the District Court of the United States for the Middle District of Pennsylvania. A hearing was set and testimony taken before the writer hereof. In this habeas corpus proceeding an order was made September 9, 1947, directing his discharge from the Penitentiary with a provision for notice to the Northern District of West Virginia in order that they might have him returned to that District for trial.1
He was accordingly so returned to the Northern District of West Virginia, where on November 7, 1947, he was re-indicted, to No. A-5989. On November 19, 1947, the defendant was presented in open court and upon inquiry by the court as to whether or not he was represented by counsel, defendant replied that he was not then so represented but that he was able to and would engage counsel, whereupon he was given until November 24, 1947, to secure the service of counsel, to which day the further prosecution of the case was continued. On November 24, 1947, defendant appeared in court with his counsel and requested a continuance until November 26, 1947, which was granted. On November 26, 1947, defendant moved that his case be transferred to the Western District of Pennsylvania under Federal Criminal Procedure Rules, 18 U.S.C.A. following section 687. On December 10, 1947, defendant moved that the Government elect as to which case (No. A-5815 on Information, No. A-5989 on Indictment) it wished to pursue, identical offenses being charged in both cases. On December 22, 1947, the Government indicated its election to proceed against defendant in Criminal Case No. A-5989, and the defendant renewed his motion that the case be transferred for trial to the Western District of Pennsylvania. The Government announcing that it would not resist the motion for transfer, the court immediately ordered that the case be transferred to the Western District of Pennsylvania for further proceedings.
The District Court of the United States for the Western District of Pennsylvania having thereupon assumed jurisdiction the defendant was removed to Pittsburgh in said District.
On January 14, 1948, the defendant was presented in open court at Pittsburgh for the purpose of ascertaining whether the defendant desired the assistance of counsel. Upon inquiry by the court, defendant stated that he was not in a position to secure counsel and desired the court to appoint counsel for him. He was advised that the case would be tried at Erie, in said District, during the March 1948 term. The court then in great detail and with infinite patience reviewed the proceedings in West Virginia on the original information, the effect of the order of the Court in the habeas corpus proceeding, and the rights of the defendant as to counsel and the production of witnesses in the instant proceeding. The defendant stated that he "understood it all." The court immediately appointed an attorney at Pittsburgh and one at Erie to represent him. These were rejected by defendant as was a third attorney later appointed by the court. A fourth attorney, suggested by defendant, was designated by the court, but was unable to appear. The court finally appointed a fifth attorney from Erie, who accepted the appointment.
With this representation the case was called before the writer at Erie, Pennsylvania, March 15,...
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...262, 95 L.Ed. 215. 42 Bryant v. United States, 8 Cir., 1914, 214 F. 51; Mitchell v. Youell, 4 Cir., 1942, 130 F.2d 880; United States v. Lowrey, D.C., 77 F.Supp. 301, affirmed, 3 Cir.1949, 172 F.2d ...
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...also Cox v. United States, 8 Cir. 1962, 309 F.2d 614, 619-620; Barnes v. United States, 9 Cir., 1956, 241 F.2d 252; United States v. Lowrey, W.D.Pa.1948, 77 F.Supp. 301, 302, aff'd 172 F.2d 226 and 179 F.2d 964, cert. den. 339 U.S. 969, 70 S.Ct. 986, 94 L.Ed. 1377; United States v. Sansone,......
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...95 L. Ed. 215. 42. Bryant v. United States, 8 Cir. (1914), 214 Fed. 51; Mitchell v. Youell, 4 Cir. (1942), 130 F.2d 880; United States v. Lowrey, D.C., 77 F. Supp. 301, affirmed, 3 Cir. (1949), 172 F.2d ...
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