Com. of Pa. v. Richards

• Citation: 111 Pa.Super. 124,169 A. 464
• Decision Date: 16 December 1933
• Docket Number: 423-1933
• Parties: Com. of Pa. v. Richards, Appellant
• Court: Superior Court of Pennsylvania

169 A. 464

111 Pa.Super. 124

Com. of Pa. v. Richards, Appellant

No. 423-1933

Superior Court of Pennsylvania

December 16, 1933

Argued October 21, 1933

Appeal by defendant from order of Q. S., Philadelphia County, May T., 1933, No. 57, in the case of Commonwealth of Pennsylvania v. Theodore Richards.

Trial of an indictment charging defendant with inciting a riot. Before McDevitt, J.

The facts are stated in the opinion of the Superior Court.

Verdict of guilty upon which judgment and sentence were entered. Defendant appealed.

Error assigned, among others, was the failure of the court to give the defendant an opportunity to be represented by counsel.

Reversed.

Saul C Waldbaum, and with him Lawrence Potamkin, for appellant.

Clare Gerald Fenerty, Assistant District Attorney, and with him Charles F. Kelley, District Attorney, for appellee.

Before Trexler, P. J., Keller, Cunningham, Baldrige, Stadtfeld and Parker, JJ.

OPINION

Stadtfeld, J.

The defendant, Theodore Richards, a young man, aged nineteen, was arrested on April 20, 1933, charged with the crime of inciting to riot. A true bill was found against him on May 2 1933, and he was tried on May 3, 1933 before McDevitt, J., and a jury. The evidence against him disclosed that he had distributed notices or posters urging mass action on the part of the people in his particular neighborhood to prevent the evictions of tenants, and at the time of the incitement to riot he made a fiery speech urging the crowd to oppose the police. He also fought with the police and attempted to prevent his arrest. Defendant had been represented by counsel at two hearings before the magistrate and before the municipal court.

Counsel neglected to notify the Commonwealth that the defendant was represented and no appearance was entered for him. He was not represented by counsel at the trial.

The case was submitted to the jury and defendant was found guilty and sentenced to pay a fine of $ 500 and undergo an imprisonment of two years in the county prison. From the judgment and sentence pronounced against him this appeal was taken.

The principal assignments of error relate (1) to the failure of the court to give the defendant an opportunity to be represented by counsel, (2) in failing to inform the defendant of his right to be represented by counsel, (14) in dismissing defendant's motion for new trial, and (15) in passing judgment and sentence against the defendant. There are other assignments in relation to the conduct of the trial by the court, to the examination by the district attorney of the Commonwealth's witness, and his cross-examination of the defendant, and to the charge of the court.

The principal assignments of error are Nos. 1 and 2, above referred to, and the same may be considered together.

The leading case in this Commonwealth is that of Commonwealth v. Jester, 256 Pa. 441, 100 A. 993, wherein the Supreme Court held, in an opinion by Mr. Justice Frazer, that there was a denial of the defendant's constitutional rights to representation by counsel even though the defendant did not inform the court that he had counsel, or that he desired the aid of counsel.

In that case, the defendant was arrested on May 29, 1915, on an information charging rape. A true bill was found against him on June 2, and he was placed on trial on June 4, without the aid of counsel, although he had employed counsel whose name appeared on the bill of indictment. The defendant did not inform the court that he was represented. The trial proceeded without the appearance of counsel for the defendant, and the latter was convicted and sentenced to an imprisonment of not less than two years and not more than three years. In that case the name of counsel for defendant appeared on the bill of indictment, wherein it differs from the instant case, but that we consider unimportant. Quoting from the opinion in that case, at p. 445: "In this case, however, defendant was substantially denied an opportunity to properly present a defense to the charge on which he was convicted. Section 9 of Article I, of the Constitution of Pennsylvania provides that 'In all criminal prosecutions the accused hath a right to be heard by himself and his counsel,' and 'to have compulsory process for obtaining witnesses in his favor.' Considering the serious nature of the charge against defendant, the short time intervening between his arrest and trial, and the absence of an opportunity to properly prepare and present a defense and procure the attendance of witness, if he had any, it cannot be said that he was accorded the right to be heard by himself and counsel, in accordance with his constitutional rights. . . . Even though defendant, immediately previous to the trial, made no specific request to be represented by counsel, his ignorance of his rights in the matter, under the circumstances of this case, is a sufficient excuse for that default. He could hardly be expected to ask for counsel, when he had already retained an attorney whose name was endorsed on the bill of indictment. Under these circumstances, it was the duty of the district attorney to call the attention of the court to the fact, and the court, in fairness to defendant, should then either have sent for the counsel or appointed another to act in his stead, if he could not be found." (Italics supplied.) That case is cited with approval in Commonwealth v. O'Keefe, 298 Pa. 169, 148 A. 73.

The right of a defendant in a criminal case to be heard by himself and counsel is a right given him not merely by the State Constitution, but by the Federal Constitution as well. In the case of Powell v. Alabama, 287 U.S. 45, 77 L.Ed. 158, 53 S.Ct. 55, the court failed to ask the defendant whether he had relatives or friends who might assist him, and failed to make a definite appointment of counsel for him. He was convicted and the Supreme Court of Alabama sustained the conviction. The United States Supreme Court...