Com. ex rel. Spencer v. Ashe

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: Before MAXEY; JONES
• Citation: 71 A.2d 799,364 Pa. 442
• Parties: COMMONWEALTH ex rel. SPENCER v. ASHE, Warden.
• Decision Date: 20 March 1950

Page 799

71 A.2d 799 364 Pa. 442 COMMONWEALTH ex rel. SPENCER
v.
ASHE, Warden. Supreme Court of Pennsylvania. March 20, 1950.

[364 Pa. 443]

Page 800

Clair V. Duff, Pittsburgh, for relator.

William S. Rahauser, District Attorney of Allegheny County, Owen B. McManus, Asst. District Attorney of Allegheny County, Pittsburgh, for appellee.

Before MAXEY, C. J. and DREW, LINN, STERN, STEARNE and JONES, JJ.

[364 Pa. 444] JONES, Justice.

The relator alleges that he was denied due process for the reason, inter alia, that at his trial in the court below, the jury was impaneled in his absence. The able argument of his appointed counsel understandably assumes such to have been the case. The fact is, however, as the record affirmatively shows, the defendant was present in court at the time in question. Thus, the minute book of the Court of Oyer and Terminer of Allegheny County, Cotober Sessions 1948, contains the following pertinent entry: 'And now October 21, 1948, defendant present in open court pleads non cul et de hoc. District Attorney similiter. Issue joined. Eodie a jury being called and came * * * [names of jurors], * * * impaneled and sworn * * *.'

In Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, 47, 24 A.2d 1, 4, our present Chief Justice quoted approvingly from Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357, as follows,--"A judgment cannot be lightly set aside by collateral attack, even on habeas corpus. When collaterally attacked, the judgment of a court carries with it a presumption of regularity'.' In the present instance, we have not only a presumption of the regularity of the judgment of conviction but also direct proof that the factual basis of the alleged irregularity did not actually exist. There is nothing in the case to justify a departurn from the stated record. Until

Page 801

the contrary affirmatively and competently appears, the relator is bound by the record: see Prine v. Commonwealth, 18 Pa. 103.

The further contention that his conviction was unlawful because he was arrested and searched by a police officer without a warrant likewise lacks merit. The record facts show that, on the evening of the crime involved, a police officer, a few minutes after he had been told by the victim that he had been robbed and assaulted, went with the victim in the latter's automobile to the place where the crime had been committed and, in that [364 Pa. 445] vicinity, saw the relator walking through a filed. The officer overtook him and placed him under arrest. He broke away and pulled a large knife from his pocket; but, when the officer drew his revolver and threatened to shoot, the relator surrendered. The officer then searched him and found on his person a wallet which the victim at once identified as his. It has long been the settled law in this State that a police officer, or even a private citizen, may arrest for felony without a warrant: Wakely v. Hart, 6 Bin. 315, 318; Brooks v. Commonwealth, 61 Pa. 352, 358-360, 100 Am.Dec. 645; Commonwealth v. Grether, 204 Pa. 203, 205, 53 A. 753;...