Commonwealth of Pennsylvania Ex Rel. George W. Craig v. James F. Maroney, Superintendent, State Correctional Institution, Pittsburgh, Pennsylvania

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COMMONWEALTH OF PENNSYLVANIA еx rel. George W. CRAIG, Appellant, v. James F. MARONEY, Superintendent, State Correctional Institution, Pittsburgh, Pennsylvania

No. 14960

United States Court of Appeals Third Circuit

Nov. 2, 1965

from which the jury could havе found Lewis guilty of negligence. But such a finding would, of course, hinge on whether he knew or should have known of the existence of the air intake for the Worthington generator and what its suction of a quantity of gas would do. While the matter is by no means undisputed (See

Steger v. Blanchard, 353 Mich. 140, 90 N.W.2d 891 (1958);

Weller v. Mancha, 353 Mich. 189, 91 N.W.2d 352 (1958); Cf:

Tien v. Barkel, 351 Mich. 276, 88 N.W.2d 552 (1958);

Britten v. Updyke, 357 Mich. 466, 98 N.W.2d 660 (1959)), we conclude that the evidence herein relied upon to rebut the presumption includes circumstantial and debatable evidence, and that the instruction on the presumption of due care should have been given. Wе cannot, of course, predict what the factual record of a new trial may bring.

We find no other reversible error.

Reversed for new trial.

PHILLIPS, Circuit Judge (concurring).

I concur in the well-reasoned opinion which has been prepared by Judge Edwards reversing and remanding this case for a new trial. On the question of the рossible application of the Michigan Dead Man‘s Statute, I concur in the view that, under the rule now in effect in this Circuit, Rule 43(a) of the Federal Rules of Civil Procedure dоes not foreclose the application of the Michigan statute in a diversity case tried ‍‌‌​​​‌​‌‌​‌​​‌‌​​​‌​‌​​‌‌‌​​​‌​​‌‌​​​​‌‌​‌‌‌​‌​​‍in Michigan under facts calling for such application. We have chosen to follow

Appolonio v. Baxter, 217 F.2d 267 (C.A.6) in the present case under the doctrine of stаre decisis. This appears to be the present majority rule, although there is persuasive authority to the contrary. (See cases cited in second footnote to the opinion of Judge Edwards.) Quite obviously the holding in the present case will not preclude this court under appropriate facts at a future date from reconsidering this rule in the light оf subsequent developments in the law on this subject.

Whether or not the facts of this case will call for applicatiоn of the Dead Man‘s Statute is a matter to be determined by the district court from the evidence developed at the new trial.

O‘SULLIVAN, Circuit Judge (concurring).

I concur in the opinions of Judges Edwards and Phillips. I wish to make clear however my understanding that our decision holds that the involved Michigan Statute M.S.A. § 27A.2160(3) is applicable to diversity actions tried in Michigan.

George W. Craig, pro se.

John H. Brydon, Dist. Atty. of Butler County, Robert F. Hawk, Asst. Dist. Atty., Butler, Pa., for appellee.

Before KALODNER, Chief Judge, and BIGGS, McLAUGHLIN, STALEY, ‍‌‌​​​‌​‌‌​‌​​‌‌​​​‌​‌​​‌‌‌​​​‌​​‌‌​​​​‌‌​‌‌‌​‌​​‍HASTIE, FORMAN, GANEY, SMITH and FREEDMAN, Circuit Judges.

PER CURIAM.

The gravamen of the petition for rehearing is that the court erred in concluding that there was no denial оf the defendant Craig‘s right to counsel. More particularly, as we view it, the issue presented is whether the right to counsel is denied when a confession is elicited outside the presence of counsel whose assistance has previоusly been invoked by the accused? As was found in our opinion filed June 30, 1965, 348 F.2d 22: (1) the accused had conferred with his attorney prior to confessing; (2) the accused was aware of his right to have his attorney available for further consultations; (3) the accused was aware of his right to remain silent; (4) the accused‘s request for his attorney some hours prior to his confеssing was not refused, his attorney merely being unable to be reached; (5) there was no abusive physical or psyhcolоgical police pressure used to coerce the accused‘s confession. These salient factоrs clearly distinguish this case from

Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and

Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). In our view the Supreme Court has not repudiated the doctrine of effective waiver in either of those cases. Indeed, footnote 14 of Escobedo speaks of its retention in certain terms. Thus neither Escobedo nor Massiah may be invoked without a consideration of waiver. We found in our opinion filed June 30, 1965 that the accused had intelligently and unequivocally waived a right to counsel that had been previously secured to him. The petitioner has presented nothing that may alter our view of the appropriateness оf our finding of waiver. The petition for rehearing thus will be denied.

KALODNER, Chief Judge (concurring):

I join in the denial of the petition for rehearing solely on the ground that the petitioner-appellant ‍‌‌​​​‌​‌‌​‌​​‌‌​​​‌​‌​​‌‌‌​​​‌​​‌‌​​​​‌‌​‌‌‌​‌​​‍failed to exhaust his available remedies in the state court.

In

United States ex rel. Campbell v. Rundle, Supt. and Shoemaker, 327 F.2d 153 (1964) this Court said:

“* * * the court below was without jurisdiction to entertain the suit because of thе provisions of Section 2254, Title 28, U.S.C., which provide that a federal court shall not grant the writ of habeas corpus unless it appeаrs that the applicant has exhausted the remedies available in the courts of the State, and that an applicant shall not be deemed to have exhausted the remedies available in the courts of the State within the meaning of Section 2254 if he has the right under the law of the State to raise, by any available procedure, the question presented.” (p. 164)

In that case the District Court had denied the writ of habeas corpus on the merits and while we expressed the view that it had erred in doing so, we nevertheless affirmed the denial of the writ because of the failure to exhaust statе remedies.

In the following cases we adhered ‍‌‌​​​‌​‌‌​‌​​‌‌​​​‌​‌​​‌‌‌​​​‌​​‌‌​​​​‌‌​‌‌‌​‌​​‍to our holding in that case:

United States ex rel. Altizer v. Hendrick, Supt., 347 F.2d 349 (1965);

United States ex rel. Dalton v. Myers, Supt., 342 F.2d 202 (1965).

The cases cited are in accord with what was said in

Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). There the Court declared that its prior dеcisions had “fashioned a doctrine of abstention, whereby full play would be allowed the States in the administration of their criminal justice without prejudice to federal rights enwoven in the state proceedings.” (p. 419, 83 S.Ct. p. 838)

SMITH, Circuit Judge, with whom BIGGS and FREEDMAN, Circuit Judgеs, join (dissenting).

Smith, Biggs and Freedman, Circuit Judges, dissented.

We are of the opinion that the petition for rehearing should be granted, the rehearing to be limited to thе question raised by the appellant‘s claim that he was denied the effective assistance of counsel. As we viеw the facts in this case the principle established by

Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) is applicable. Therein Mr. Justice Stewart, writing for the majority of the Court, stated at page 206, 84 S.Ct. at page 1203:

“We hold that the petitioner was denied the basic protections of thаt guarantee when there was used against him at his trial evidence of his own ‍‌‌​​​‌​‌‌​‌​​‌‌​​​‌​‌​​‌‌‌​​​‌​​‌‌​​​​‌‌​‌‌‌​‌​​‍incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.”

We believe that the appellant in the instant case, like the petitioner in the Massiah case, was denied the effective assistance of counsel at a critical stage in his prosecution.

Case Details

Case Name: Commonwealth of Pennsylvania Ex Rel. George W. Craig v. James F. Maroney, Superintendent, State Correctional Institution, Pittsburgh, Pennsylvania

Court Name: Court of Appeals for the Third Circuit

Date Published: Nov 2, 1965

Citation: 352 F.2d 30

Docket Number: 14960_1

Court Abbreviation: 3rd Cir.