Lindsey v. Com.

• Citation: 116 N.E.2d 691,331 Mass. 1
• Parties: LINDSEY v. COMMONWEALTH.
• Decision Date: 04 January 1954
• Court: United States State Supreme Judicial Court of Massachusetts

Page 691

116 N.E.2d 691

331 Mass. 1

LINDSEY v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 2, 1953.

Decided Jan. 4, 1954.

Wilbur G. Hollingsworth, Boston, for plaintiff in error.

Arnold H. Salisbury, Asst. Atty. Gen., for the Commonwealth.

Before QUA, C. J., and WILKINS, SPALDING and COUNIHAN, JJ.

QUA, Chief Justice.

The petitioner sued out his writ of error to reverse two concurrent sentences of seven to nine years in the State Prison imposed upon him simultaneously in the Superior Court for the offences respectively of incest and of carnal knowledge of a female child under the age of sixteen. The extreme penalties for these crimes are respectively twenty years and life imprisonment. G.L. (Ter.Ed.) c. 272, § 17; c. 265, § 23.

One of the petitioner's contentions is that he was denied due process of law under the Fourteenth Amendment to the Constitution of the United States by reason of the fact that although, as he says, he had procured counsel, he was deprived of the assistance of that counsel in court.

The right to the assistance of counsel obtained by the accused is, of course, one of the rights secured by the Fourteenth Amendment. Powell v. State of Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. 158. Although the State is not in all cases required to furnish counsel it is required to allow the accused a reasonable opportunity to procure counsel for himself and to allow such counsel a reasonable opportunity to prepare and to present the defence. Allen v. Commonwealth, 324 Mass. 558, 87 N.E.2d 192; Commonwealth v. Blondin, 324 Mass. 564, 567-569, 87 N.E.2d 455; Avery v. State of Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 84 L.Ed. 377; House v. Mayo, 324 U.S. 42, 45-46, 65 S.Ct. 517, 89 L.Ed. 739; White v. Ragen, 324 U.S. 760, 763-764, 65 S.Ct. 978, 89 L.Ed. 1348.

Bearing upon this point, the following facts appear, either as matter of record or from findings of the single justice. The petitioner was arrested on March 1, 1949. From March 3 or 4 he was in custody at Charles Street jail in Boston until March 21, the day of his trial. On March 15 he was indicted and arraigned and pleaded not guilty to both indictments. The cases were on the daily trial list for Friday March 18, and late in the afternoon they were sent out from the first session, in which the trial list is called, to the third session for trial; but the trial did not begin that day. It did not appear that the petitioner knew that the cases had been sent out. Later that afternoon at the jail the petitioner consulted with Mr. Dwyer, an attorney representing the Voluntary Defenders' Committee. The petitioner told Mr. Dwyer that his cases would be reached for trial on the following Monday, and Mr. Dwyer told him that he would attempt to get a continuance. On Monday morning Mr. Dwyer went to the Superior Court and found that the cases were not listed on the daily trial list. He thereupon left the court house, but asked Mr. Leydon, an associate on the staff of the Voluntary Defenders' Committee, to attempt to get a continuance. Mr. Leydon was told by the clerk in the first session that the cases had been continued on Friday. This was not the fact. There is no reason, however, to believe that the clerk intended to make a false statement. Shortly thereafter Mr. Leydon was advised that the cases were then proceeding to trial in the third session. Upon going there he found that a jury had already been impaneled. He spoke to the judge and was allowed a short time to confer with the petitioner. The judge told him that 'as the jury had been impaneled it was too late to have a continuance.' The trial went on. Mr. Leydon cross-examined the government's witnesses and argued to the jury. Verdicts of guilty were returned.

Evidence set forth in the bill of exceptions would have warranted the finding of some additional details favorable to the petitioner, but it is not the province of the full bench in a proceeding at law to find facts from the evidence. Atlantic Maritime Co. v. Gloucester, 228 Mass. 519, 522, 117 N.E. 924; Maybury Shoe Co. v. Izenstatt, 320 Mass. 397, 402, 69 N.E. 666; Ex parte Tardiff, petitioner, 328 Mass. 265, 267, 103 N.E.2d 265. The single justice may not have been convinced of the correctness of the evidence beyond the findings he made.

But in our opinion the findings made show that the petitioner had succeeded in procuring the services of a lawyer, and because of the course of events and without fault on his part or on the part of any lawyer representing him he was deprived of those services at the time when he most needed them. Mr. Leydon was not engaged to try the cases. He had nothing whatever to do with the cases until the morning of the trial. He undertook no more than to seek to procure a continuance of cases that were not on the list for the day. He did not even see the petitioner until after the cases were on trial. He could have made no preparation to try them. When he discovered unexpectedly that the cases were on trial, that the trial could not be stopped, and that the petitioner was...