169 A. 464 | Pa. Super. Ct. | 1933
Argued October 21, 1933. The defendant, Theodore Richards, a young man, aged nineteen, was arrested on April 20, 1933, charged with the crime of inciting to riot. A true bill was found against him on May 2, 1933, and he was tried on May 3, 1933 before McDEVITT, J., and a jury. The evidence against him disclosed that he had distributed notices or posters urging mass action on the part of the people in his particular neighborhood to prevent the evictions of tenants, and at the time of the incitement to riot he made a fiery speech urging the crowd to oppose the police. He also fought with the police and attempted to prevent his arrest. Defendant had been represented by counsel at two hearings before the magistrate and before the municipal court.
Counsel neglected to notify the Commonwealth that the defendant was represented and no appearance was entered for him. He was not represented by counsel at the trial.
The case was submitted to the jury and defendant was found guilty and sentenced to pay a fine of $500 and undergo an imprisonment of two years in the county prison. From the judgment and sentence pronounced against him this appeal was taken.
The principal assignments of error relate (1) to the failure of the court to give the defendant an opportunity to be represented by counsel, (2) in failing to inform the defendant of his right to be represented by counsel, (14) in dismissing defendant's motion for new trial, and (15) in passing judgment and sentence *126 against the defendant. There are other assignments in relation to the conduct of the trial by the court, to the examination by the district attorney of the Commonwealth's witness, and his cross-examination of the defendant, and to the charge of the court.
The principal assignments of error are Nos. 1 and 2, above referred to, and the same may be considered together.
The leading case in this Commonwealth is that of Commonwealth v. Jester,
In that case, the defendant was arrested on May 29, 1915, on an information charging rape. A true bill was found against him on June 2, and he was placed on trial on June 4, without the aid of counsel, although he had employed counsel whose name appeared on the bill of indictment. The defendant did not inform the court that he was represented. The trial proceeded without the appearance of counsel for the defendant, and the latter was convicted and sentenced to an imprisonment of not less than two years and not more than three years. In that case the name of counsel for defendant appeared on the bill of indictment, wherein it differs from the instant case, but that we consider unimportant. Quoting from the opinion in that case, at p. 445: "In this case, however, defendant was substantially denied an opportunity to properly present a defense to the charge on which he was convicted. Section 9 of Article I, of the Constitution of Pennsylvania provides that `In all criminal prosecutions the accused hath a right to be heard by himself and his counsel,' and `to have compulsory process for obtaining witnesses in his favor.' Considering the *127
serious nature of the charge against defendant, the short time intervening between his arrest and trial, and the absence of an opportunity to properly prepare and present a defense and procure the attendance of witness, if he had any, it cannot be said that he was accorded the right to be heard by himself and counsel, in accordance with his constitutional rights....... Even though defendant, immediately previous to the trial, made no specific request to be represented by counsel, his ignorance of his rights in the matter, under the circumstances of this case, is a sufficient excuse for that default. He could hardly be expected to ask for counsel, when he had already retained an attorney whose name was endorsed on the bill of indictment. Under these circumstances, it was the duty of the district attorney to call the attention of the court to the fact, and the court, in fairness to defendant, should then either have sent for the counsel or appointed another to act in his stead, if he could not be found." (Italics supplied.) That case is cited with approval in Commonwealth v. O'Keefe,
The right of a defendant in a criminal case to be heard by himself and counsel is a right given him not merely by the State Constitution, but by the Federal Constitution as well. In the case of Powell v. Alabama,
The right to be represented by counsel is a fundamental right, going to the very basis of the administration of the criminal law, and places on the trial judge the onus to inform the defendant of his rights and to assist him in obtaining the benefits of those rights. The failure of the court to inform him of his rights amounts to a denial of the right.
In the instant case, it was the duty of the trial judge to have informed the defendant that he had a right to counsel, and to subpoena witnesses who might testify for him. The failure of the court to so inform him, or to appoint counsel for him was fundamental error. As was said by Mr. Justice COULTER, in Brown v. Hummel,
In view of our action on these assignments, the other assignments need not be discussed.
Judgment reversed and new trial granted.