Commonwealth Maurice v. Smith, Warden

28 A.2d 811 | Pa. Super. Ct. | 1942

The petition for a rehearing is refused.

This petitioner on July 28, 1939, filed a petition for writ of habeas corpus in this court to No. 19 Miscellaneous Docket No. 5, which was refused on September 8, 1939.

On May 24, 1940, he filed a second petition for writ of habeas corpus to No. 80 Miscellaneous Docket No. 5. We granted the writ and had a hearing which was held at Room 450 City Hall, Philadelphia, on October 28, 1940, at which time the petitioner testified in his own behalf, and Morris Passon, Harry W. Steinbrook, Assistant District Attorney Harry Felix and Judge EDWIN O. LEWIS, who presided at the trial, were also heard. On November 11, 1940, we ordered the writ dismissed and the relator remanded.

He then applied to our Supreme Court for a writ of habeas corpus, which was refused on January 20, 1942, (Com. ex rel.Maurice v. Smith, Warden, 344 Pa. 60, 24 A.2d 11), the court basing its refusal on Com. ex rel. McGlinn v. Smith, Warden,344 Pa. 41, 24 A.2d 1. It also approved our action on the petition filed to No. 80. In quoting from our order in that case the Supreme Court inadvertently omitted the part of our order, italicized below. What we actually said, inter alia, was ". . . . . . we find . . . . . . that he knew of his right to be represented by counsel on the trial; that he did not ask for a continuance of the case; that he was asked by the assistant district attorney and the trial judge if he had counsel, orwanted counsel to represent him, and that he replied that he did not."

Petitioner then applied to the Supreme Court of the United States for writ of certiorari to the Supreme Court of Pennsylvania, which on March 30, 1942, was denied "for the reason that the court, upon examination of the papers herein submitted, finds no ground upon which writ of certiorari should be issued." See 62 Supreme Court Reports 918, 315 U.S. 820.

The matter is closed and will not be reopened.