Delgado v. Pagan Cancel, 6615.
Decision Date | 08 July 1966 |
Docket Number | No. 6615.,6615. |
Citation | 363 F.2d 105 |
Parties | Gerardo DELGADO, Warden, Respondent, Appellant, v. Leoncio PAGAN CANCEL, Petitioner, Appellee. |
Court | U.S. Court of Appeals — First Circuit |
Irene Curbelo, Asst. Sol. Gen., with whom J. B. Fernandez Badillo, Sol. Gen., was on brief, for appellant.
Santos P. Amadeo, Rio Piedras, P. R., with whom Julio Rodriguez, Jr., Richard Ramos Algarin, Santurce, Guillermo Bird Martinez and Jose Enrique Amadeo Navas, were on brief, for appellee.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
This is a petition for habeas corpus seeking to vacate a conviction by the Commonwealth of Puerto Rico on the ground of unconstitutional use of a confession. As one basis for its decision the district court, finding that at the time he confessed petitioner had not been supplied with counsel, held that Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, governed and was to be retrospectively applied. In the light of Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, (6/20/66), this ruling was error. We, accordingly, turn to the court's alternative ground, that the nature of petitioner's claim was of greater consequence, and beyond Escobedo.
On December 23, 1954 a man was beaten with a cudgel, from which beating he died the next day. The afternoon following, petitioner inquired whether the victim had died, and upon receiving an affirmative answer, went to the police station and said he wanted to give himself up. He was taken forthwith to a justice of the peace. Petitioner repeated that he wished to confess. The justice told him he need make no statement and that what he said could be used against him. Petitioner, nevertheless, confessed to the crime. This confession was introduced at the trial, and petitioner was found guilty.
This is not a post-Escobedo confession; nor had petitioner requested an attorney. He seems to have had only the single motive of unburdening himself. However, it is now his position that because this was a preliminary hearing he was constitutionally obliged to be furnished with counsel. This we must consider.
In the case at bar the proceeding before the justice of the peace was for the purpose of determining probable cause to hold the defendant for trial. 34 L.P.R.A. § 76 (1956). While doubtless petitioner's statement served to facilitate a finding of probable cause, so it would have had it been made to the police, Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, (6/20/66), or to the district attorney, Escute v. Delgado, 1 Cir., 1960, 282 F.2d 335, cert. den. 365 U.S. 883, 81 S.Ct. 1033, 6 L.Ed.2d 193. No plea was provided for, or was made.
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