Commonwealth v. Smith

• Citation: 24 A.2d 1,344 Pa. 41
• Parties: COMMONWEALTH ex rel. McGLINN v. SMITH, Warden.
• Decision Date: 20 January 1942
• Court: United States State Supreme Court of Pennsylvania

24 A.2d 1
344 Pa. 41

COMMONWEALTH ex rel. McGLINN
v.
SMITH, Warden.

Supreme Court of Pennsylvania.

Jan. 20, 1942.

24 A.2d 1

[Copyrighted material omitted.]

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No. 451, Misc. Docket No. 7.

Original proceeding for writ of habeas corpus by the Commonwealth of Pennsylvania, on the relation of Charles McGlinn, against Herbert Smith, Warden, State Penitentiary Eastern District of Pennsylvania.

Writ refused.

No argument.

No attorneys.

MAXEY, Justice.

This is a petition for a writ of habeas corpus. The petition sets forth that Charles McGlinn was tried on November 20, 1931 before Judge Harry S. McDevitt and a jury on two charges, to wit (as described), (a) "being armed to rob" and (b) "robbery, and a verdict of 'guilty' was rendered." Thereupon the petitioner was sentenced to serve a minimum of 10 years and a maximum of 20 years in the Eastern Penitentiary. He is now in the penitentiary serving this sentence. He claims that he is "unlawfully restrained and deprived of his liberty" because he at his trial "did not have counsel; was not represented by counsel, was not informed of his right to have counsel, did not have counsel appointed by the court, and did nothing that would waive his constitutional right to be represented by counsel". He also denies his guilt of the crimes charged and for which he is serving sentence.

In Commonwealth's answer to the petition the above averments as to the trial, the conviction and sentence are admitted and it is further set forth: "It does not appear from the notes of testimony that the defendant was represented by counsel, nor does it appear whether or not he was informed of his right to be represented by counsel. The defendant pleaded not guilty, took the witness stand in his own defense and the jury found him guilty."

The answer further sets forth that the petitioner "was arrested August 16, 1921 and indicted on the charge of attempted larceny of an automobile and was tried and convicted (on that charge) and sentenced to not less than two and a half years in the penitentiary"; and that he was arrested on November 27, 1924 for "larceny of an automobile and receiving stolen goods, and operating the automobile without the owner's consent", and that he pleaded guilty and was sentenced to a minimum of five years in the penitentiary.

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He was also arrested on another occasion on suspicion of larceny of an automobile and discharged by the magistrate.

When the petitioner was arrested on the charge for which he is now serving his sentence, one James McMonegle was also arrested as McGinn's accomplice and both were indicted together. McMonegle pleaded nolo contendere.

The answer says: "It is perfectly evident from these facts that the relator's knowledge of court procedure was not new in 1931. It is also clear from the evidence in this case that these two defendants, McMonegle and McGlinn, about 1:30 of the morning of November 7, 1931, held up the operator of a one-man trolley at Richmond and Cumberland Streets, the end of the trolley line, boarding the trolley as though they were passengers. McMonegle had a gun. They immediately told the operator to 'stick 'em up'. They robbed him of $18 and 45 tokens. There was a passenger in the car, Anthony Hildebrand, who identified the defendants as being the ones who held up the operator. They were arrested two or three blocks from the holdup. A loaded 32 calibre revolver was found on McMonegle who had part of the money, $12.20, and the balance of the money, $5.60, was found upon McGlinn, a total of $17.80, and some of the tokens. The relator in his testimony stated that he was stopped and searched for five minutes before McMonegle was arrested, but this was denied in rebuttal by the officer who made the arrest."

There is vested in the court to which a petition for a writ of habeas corpus is addressed discretion as to whether or not, on the record before it, the petitioner has made out a prima facie case for the issuance of the writ. That this petitioner is an "old offender" is undisputed. When he was returned to the penitentiary he was a "parole violator" who "owed five years back-time" on his former sentence. That he was not ignorant of the procedure in criminal courts is obvious. That with his experience in criminal courts he must have known that he could have had counsel assigned to him upon request seems clear.

There are four decisions of the United States Supreme Court which are relied on by this and other similarly situated petitioners for release from imprisonment by writs of habeas corpus. These cases are (1) Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 65, 77 L.Ed. 158, 84 A.L.R. 527, decided November 7, 1932, opinion by Mr. Justice Sutherland; (2) Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461, decided May 23, 1938, opinion by Mr. Justice Black; (3) Walker v. Johnston, Warden, 312 U.S. 275, 61 S.Ct. 574, 576, 85 L.Ed. 830, decided February 10, 1941, opinion by Mr. Justice Roberts; (4) Smith v. O'Grady, Warden of Nebraska Penitentiary, 312 U.S. 329, 61 S.Ct. 572, 573, 85 L.Ed. 859, decided February 17, 1941, opinion by Mr. Justice Black. The decision in none of these cases requires us to grant the petitioner a hearing or to release him from imprisonment. In the first case named the scope of the decision was clearly defined by Justice Sutherland as follows: "All that it is necessary now to decide, as we do decide, is that in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case."¹ In the second case the petitioner was a federal prisoner who claimed that the right guaranteed him by the Sixth Amendment to the Constitution had been denied him, to wit: "In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defense." This amendment applied only to prosecutions under federal laws. Hurtado v. California, 110 U.S. 516, 534, 4 S. Ct. 292, 28 L.Ed. 232; Barron v. Mayor, et al., of Baltimore, 7 Pet. 243, 8 L.Ed. 672. In Mr. Justice

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Black's opinion in Johnson v. Zerbst, supra, he said: "Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a federal court's authority to deprive an accused of his life or liberty. When this right is properly waived, the assistance of counsel is no longer a necessary element of the court's jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty." In the third case the petitioner, a federal prisoner, claimed that "he was deprived of the assistance of counsel for his defense in violation of the Sixth Amendment". He stated that when he told the District Attorney "he intended to plead not guilty", that official "sought to persuade him that he would be proved guilty * * *" that petitioner's request for time to "communicate with his relatives and try to obtain money to enable him to hire an attorney for his defense" was denied by the District Attorney as "not possible" and that official "told him to plead guilty, warning him that he would be sentenced to twice as great a term if he did not so plead." He did so plead, though in his petition he claimed to be innocent. The Court held: "On this record it is his right to be heard." In the fourth case the facts as described by Mr. Justice Black are these: "After three days in * * * jail, and 'without ever having had a copy of the charge', petitioner was * * * 'summarily arraigned, and, upon his prearranged plea of guilty, sentenced * * * to a term of twenty years imprisonment * * *.' Petitioner, an...