20 A.2d 852 | Pa. Super. Ct. | 1941
Argued April 22, 1941. Appeal by Roy Hullig from the order of the Court of Common Pleas of Allegheny County (ROWAND, J.) dismissing his petition for writ of habeas corpus and remanding him to the custody of the warden of the penitentiary.
The main contention of the appellant in his petition for writ of habeas corpus was that he had been denied due process of law on the trial of his case in the Court of Quarter Sessions of Erie County, No. 51 May Sessions 1939, in the following particulars:
(1) His attorney of record was not notified of the trial and was not in court at the time of the trial.
(2) He was not given the means or opportunity of obtaining witnesses in his favor.
(3) He was forced to trial without time to prepare his case.
(4) He was denied the "safeguard of an impartial jury trial", by the failure of the court to allow petitioner to examine and select the jury.
(5) He was denied the "right to the guiding hand of counsel" when sentence was passed.
On May 9, 1939 a true bill was returned by the Grand Jury of Erie County on an indictment containing two counts, the first charging Roy Hullig, alias Roy Helwig, with the larceny of an automobile (see Act of May 1, *13 1919, P.L. 99) and the second charging him with receiving the automobile knowing it to have been stolen. On May 11, 1939 he was tried before Judge WAITE, specially presiding, and was convicted on the charge of larceny, and was sentenced to imprisonment in the Western State Penitentiary for a term of not less than two years or more than four years, to be computed from May 10, 1939, the date of his commitment to jail.
On December 11, 1940 he filed his petition for writ of habeas corpus in the Court of Common Pleas of Allegheny County, and was produced and testified at the hearing held on December 16, 1940.
The district attorney of Erie County filed an answer to his petition, denying the averments of the petitioner, and, with respect to his allegation that he had employed counsel, attached thereto a letter from John A. Blackmore, Esq., the attorney whom the petitioner had averred he had employed to represent him, stating that his records failed to show that he had been employed by Roy Hullig or by "any client bearing a name similar to Roy Hullig", and that it is his belief that he had no relations whatsoever with Roy Hullig. In his opinion, filed under Rule 58 of this court, the sitting judge stated that the petitioner, this appellant, admitted that he had not hired an attorney, by which we understand that he had not retained Mr. Blackmore as his attorney. Certain it is that no attorney entered his appearance for Hullig with the clerk of the court as required by Rule 2 of the Revised and Restated Rules of the several courts of the Sixth Judicial District (Erie County), and no note of any such appearance was entered on the docket. He had no attorney of record.
The original records at No. 51 May Sessions 1939 of Erie County show that at the preliminary hearing held on April 29, 1939, following the relator's arrest, he was released on bail, conditioned for his appearance at the next court of quarter sessions beginning May 8, 1939; that he was at liberty until May 10, 1939, when *14 because of his failure to appear in accordance with the condition of his bond, he was again arrested and committed to jail. He thus had eleven days' time to employ an attorney, summon his witnesses, and prepare for his defense. It was his duty to employ an attorney, if he desired one, and to prepare for his defense and summon his witnesses during the time elapsing between his discharge on bail and the day he was to appear and answer in court. He could not delay until an indictment was returned and then for the first time attempt to engage counsel and start on the preparation of his defense. The law contemplates and brooks no such delay on the part of defendants in criminal cases. If allowed, no criminal case could be tried until the session occurring next after a true bill was returned, usually three months. When called for trial on May 11, 1939, no attorney appearing for him, the court appointed Mr. Edward Petrillo, a competent attorney of the Erie County bar, to represent him. If he chose not to avail himself fully of Mr. Petrillo's services, and to act as his own attorney, that was his right. He could waive his right to be heard by counsel, but he had no right to delay the trial because of his desire to be represented by a particular lawyer whom he had not retained or employed while he was out on bail and who had not entered an appearance for him as required by the Rules of Court. To the appellant's suggestion in his supplemental argument that Mr. Blackmore's name was entered on the original bail bond, as is the custom in Erie County, the district attorney produced the bond in court and it showed no entry on it of any attorney for the defendant.
The record shows that Mr. Petrillo cross-examined some of the Commonwealth's witnesses; and there is no reason to believe that he was not permitted to take part in the examination and selection of the jury. If the defendant saw fit not to take the witness stand and testify in his own behalf, that, too, was his own concern. *15 The evidence for the Commonwealth was ample to sustain a verdict of guilty on the first count.
The appellant's reasons for his discharge largely hang upon the first one, and while replete with phrases culled from judicial opinions dealing with wholly different circumstances, there is no merit in them if the first reason is unfounded in fact. The trial court fully safeguarded his rights and he was given opportunity to be represented by counsel, to examine and select the jury and to be heard on his own behalf. If he chose not to avail himself of them he alone is responsible. If he refused the offer of Mr. Petrillo's services on the trial, as he seems to intimate, he cannot complain because he was not present when sentence was pronounced.
The cases relied on by the appellant are wholly dissimilar in their facts. They are not applicable where the defendant is out on bail for a time reasonably sufficient — in this case, eleven days — to employ an attorney, prepare for his defense and secure witnesses to testify on his behalf.
In Com. v. Jester,
In Com. v. O'Keefe,
Even in murder cases where the defendant is necessarily kept in prison awaiting trial, the Supreme Court has refused to set aside the conviction where the defendant had but little longer time to prepare his case than this defendant had.
In Com. v. Flood,
In Com. v. Meyers,
In Com. v. Deni,
Formal arraignment in court was not necessary: Act of May 15, 1895, P.L. 71; Com. v. Ferguson,
The court below gave appellant a full hearing on the matters averred in his petition for the writ of habeas corpus and found that the proceedings on the trial leading up to his conviction were regular and that his allegations of irregularities and of deprivations of his legal and constitutional rights on the trial were not sustained by the evidence. With that conclusion we agree.
As we heard the case solely by way of appeal, we shall not consider any matters not raised in the court below.
Judge HIRT took no part in the consideration or decision of this appeal.
Ordered affirmed.