This is a petition for writ of habeas corpus. The relator is confined in the Eastern State Penitentiary, under sentence by the Court of Oyer and Terminer of Philadelphia County (MILLAR, J.), following his pleas of guilty to four bills of indictment, returned against him, under the name, George Shaw, alias Wayne Stanley, on April 5, 1937, to April Sessions 1937, Nos. 2, 3, 4, and 5, as follows:
No. 2 — Robbery, while armed with an offensive weapon.
No. 3 — Felonious entry, and robbery from the person.
No. 4 — Assault and battery, three counts.
No. 5 — (1) Carrying concealed deadly weapon; (2) carrying firearm without license.
On April 7, 1937 he pleaded guilty in open court to all four bills, except that as to No. 4, he pleaded `not guilty' to the count charging assault and battery with intent to kill, thereby showing that he understood the charges. He was sentenced on No. 2 to imprisonment in the Eastern State Penitentiary for not less than ten years nor more than twenty years. The entry on the other bills was, "Sentence on No. 2."
The petition for the writ of habeas corpus set up the following grounds for discharge: That at the time of entry of the plea of guilty he was not represented by counsel; that the trial judge did not ask him if he desired counsel, or offer to appoint counsel; that he did *425 not know his right to have counsel represent him at said trial; nor did he waive that right.
He did not deny his guilt or aver that he had not committed the crimes charged in the indictments, or that he did not understand the nature of the offenses to which he had pleaded guilty; but claimed, nevertheless, to have been "deprived of his constitutional right as set forth in a recent decision of the United States Supreme Court."
In the brief filed by counsel on his behalf, reliance is put on the case of Walker v. Johnston,
Shortly after the last-named case was reported, we had occasion to consider it in connection with the petition in habeas corpus of Otto Schultz, who had been sentenced to the Eastern State Penitentiary on four indictments for indeterminate terms aggregating not less than 23 years nor more than 46 years. We ruled that the aggregate of the terms which could legally have been imposed on him was a minimum of 15 years and a maximum of 30 years. He had served nine years of this imprisonment. Applying the legal principles enunciated in that case — which, however, dealt with imprisonment in a federal prison following conviction in a federal court1 — we discharged the relator from custody, because in the circumstances attending that trial, as adduced at the hearing before us, we felt that he had been deprived of the constitutional right guaranteed by section 9, of Article I — or Declaration of Rights — of our State Constitution.2 We were influenced in that *427
decision by the fact that, irrespective of whether that section of our Declaration of Rights requires a court on the trial of a defendant accused of serious crime, who has no counsel to defend him on the trial, to furnish him with the assistance of counsel, it had been the uniform practice for many years in all the counties of the State of which the members of this court had personal knowledge or experience — except Philadelphia County — for the court in such cases to offer a defendant, going to trial on a serious charge without counsel, to appoint counsel to assist him in his defense. See Com. ex rel. Schultz v. Smith, Warden,
Since this petition and its companions4 were presented, our Supreme Court has filed an opinion in the habeas corpus proceeding, Com. ex rel. McGlinn v. Smith, Warden,
The following language of Mr. Justice MAXEY is most pertinent: "The right guaranteed by the Pennsylvania Constitution (Art. I, sec. 9) of an accused to be `heard by counsel' has never been challenged or abridged in this Commonwealth; the right of an accused to be supplied with counsel when none is asked for was never until recent years asserted in this Commonwealth. This court has never countenanced the idea that the accused in a criminal case when the charge is other than murder is being deprived of a constitutional right if he is not informed in advance of his trial that counsel will be assigned him upon request. . . . . . If this petition presents a case of `apparent need for' the `extraordinary remedy' of habeas corpus, it is reasonable to expect that our courts will soon be flooded with like petitions. In this State during the years 1939-1940 there were in our criminal courts 37,221 pleas of guilty, 10,755 convictions in which a jury trial was waived, and 6,104 convictions after a jury trial. In the same period there were 3,703 defendants sentenced to state prisons or reformatories and 18,449 sentenced to local jails. If even 20% of the defendants who are here annually sentenced to prison were `without benefit of counsel' and seek their discharge by writs of habeas corpus issuing out of the *430 appellate courts, these two courts will annually have to hear and dispose of 1,107 [2,215 or 1,107 each] such cases. Our courts should not for the reasons offered in this petition turn loose upon society the hundreds of convicts who were sent to prison after pleading guilty or being adjudged guilty by a jury, unless the law imperatively requires them to do so, and there is no such requirement." (Italics supplied).
While the McGlinn case dealt with a relator who had pleaded `not guilty,' was tried and convicted, after testifying in his own behalf, it is clear from the above italicized words that it applies in principle, no less — if not to an even greater degree — to a relator who, like this one, pleaded guilty without trial and who presented in his petition no denial of his guilt of the crime for which he was indicted, no request for counsel, and no allegation of any trick, deception, coercion or other misconduct on the part of the district attorney or the law enforcement officers which induced his plea.
This Commonwealth in 1776 adopted as a part of its Constitution a Declaration of Rights, securing, inter alia, to one accused of a criminal offense the right to be heard by himself and his counsel, to demand the cause and nature of his accusation, to be confronted with the witnesses, to call for evidence in his favor, and a speedy public trial by an impartial jury of the country (Clause Ninth).5 This was fifteen years before the adoption of the first ten amendments to the Federal Constitution, commonly known as the Bill of Rights, which secured *431
to the people of the United States the same protection against violation of their personal rights and individual liberties by the Congress and the Federal Courts that they had secured to themselves by their State Constitutions, as respects their State Legislatures and State Courts. The clause above referred to was not adopted and transplanted into our basic law from the Common Law of England, for as pointed out by Mr. Justice SUTHERLAND inPatton v. United States,
This court includes among its members two judges who had long experience — seventeen to eighteen years — in the court of quarter sessions, before their appointment to this court; two judges who had experience as district attorneys, before they became members of this court; and several judges whose experience in the criminal courts goes back nearly fifty years, and none of them recalls a single instance, except in capital cases, where a court of oyer and terminer or quarter sessions appointed counsel for a prisoner, or accused, *432
who appeared in open court and entered a plea of guilty to a criminal charge. Nor are any of us aware of the existence of such a practice in the Federal Courts in Pennsylvania, at least before the decision in Johnson v. Zerbst, supra. It was the uniform practice for the presiding judge, before accepting the plea, to satisfy himself that the defendant knew what crime he was charged with and understood the plea; and if there was any doubt on the subject, or as to the defendant's admission of guilt, he refused to accept the plea and ordered him to trial. It was this well-known practice which probably led the Supreme Court, speaking through Mr. Justice MAXEY, to say in Com. ex rel.Jenkins v. Ashe, Warden,
The practical effect of the matter must be considered. If, as pointed out by Mr. Justice MAXEY, in the McGlinn case, supra, there were 37,221 pleas of guilty entered in the criminal courts of this Commonwealth during the years 1939 and 1940 — an average of 18,610 a year — and 30% of them had no counsel — which is alow estimate for pleas of guilty — the courts would have had to appoint counsel in 5583 cases each year, and hold up the arraignment, plea, or trial until a consultation with counsel could be had, notwithstanding the defendants were guilty and knew it. Speedy justice, so long as it is fairly administered, is the crying need of the present hour, and the course suggested would simply clog the work of already burdened courts, without any appreciable benefit to the accused. We respectfully submit that the word, defense, as used in the phrase in the Sixth Amendment to the Federal Constitution, *433 "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . . . . and to have the Assistance of Counsel for his defense," contemplates defense at a speedy and public trial; and Mr. Justice BLACK has said, "The very word `trial' connotes decisions on the evidence and argument properly advanced in open court."6
The Fourteenth Amendment to the Federal Constitution, the `due process of law' clause of which — equivalent to the clause in our Constitution: "Unless by the judgment of his peers or the law of the land," — has been extended far beyond its original signification,7 does not require that the `process of law' in order to be `due,' must be the same in all the states, or the same as prescribed for the Federal courts. "The State is free to regulate the procedure of its courts in accordance with its own conceptions of policy, unless in so doing it `offends someprinciple of justice so rooted in the traditions and conscienceof our people as to be ranked as fundamental'" (Italics supplied): Brown v. Mississippi,
A judicial practice that has been non-existent for 165 years cannot be said to be so "rooted in the traditions and conscience of our people as to be ranked as fundamental."
The answer of the district attorney in this proceeding *434 averred that the relator was caught red-handed, immediately after the robbery, following a chase by the police for a city square, during which time he was never out of sight of the officers, and, in the course of the chase, he shot a bystander, while firing his revolver at a pursuing policeman; and that the articles taken by him in the robbery were found on his person when captured. No denial to these averments was made by the relator by way of reply. The answer also averred his criminal record.
We are of opinion that in the circumstances shown to be present in this case, the relator was not deprived of any fundamental right guaranteed by the Constitution of this Commonwealth or by the Federal Constitution.
The rule is discharged and the petition is denied.
Corresponding provisions of prior Constitutions:
Constitution of 1776, Dec. of Rights, Cl. IX.
Constitution of 1790, Art. IX, sec. 9, (Verbatim).
Constitution of 1838, Art. IX, sec. 9, (Verbatim).