Opinion by
Dеfendant was arrested May 29, 1915, and held for court, without bail, on an information charging a felony. On June 2, 1915, a true bill was found against him, аnd two days later he was brought from the county prison to the city hall, Philadelphia, and placed on trial, without being reрresented by counsel, and without opportunity to prepare his defense. In his petition for allowance of appeal to this court, as well as in his petition for a supersedeas to the Superior Court, and his motion for a nеw trial in the Court of Oyer and Terminer, defendant averred he had no notice or knowledge that he was to be plaсed on trial, and was ignorant of his rights, and of court procedure. He was found guilty, and sentenced to
The opinion of the Superior Court is based on the ground that; the facts disclosed by the record fail to clearly show an abuse of discretion on the part of the court below, either on the trial of the case, оr in dismissing the motion for a new trial. Prom the facts set forth in the motion for a new trial, and the affidavit accompanying the рetition to the Superior Court, and also to this court, for an allowance of an appeal, it appears defendant retained Edward A. Kelly, Esq., of the Philadelphia bar, to represent him at the trial, and that, on June 4, 1915, the day of the trial, Kelly was actually engaged in room 696, city hall, in entering bail for defendant’s release from custody, at the time defendant was being tried in room 453. No notice was given either defendant, or his attorney, of the date of trial, and the latter, in his аffidavit, states he had no knowledge whatever that tjie case was to be tried at that time. Depositions showing these facts are printed in the appendix of appellant’s paper book. There is nothing, however, in the dockеt entries, or in any part of the record, to indicate they were filed of record, or taken pursuant to rule or rеgular practice; they were apparently taken and used in support of a petition for a writ of habeas corpus, presented to, and refused by, the Superior Court. While part of the proceedings in the lower court, thеse papers form no part of the present record: Road in Little Bri
We h'ave repеatedly stated that the granting or refusal of a new trial is a matter within the discretion of the trial court, and its action thereon will not be reversed in absence of clear abuse of such discretion. In this case, however, defendant was substаntially 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 accusеd hath a right to be heard by himself and his counsel,” and “to have compulsory process for obtaining witnesses in his favor.” Considering the serious nature of the charge against defendant, the short time intervening between his arrest and tidal, and the absence of an opportunity to properly prepare and present a defense and procure the аttendance of witness, if he had any, it cannot be said he was accorded the right to be heard by himself and counsel, in аccordance with his constitutional rights. When defendant was brought from the county jail to the court room, two days after a true bill had been found against him, neither he, nor his counsel, had notice or knowledge, that he would be placed on trial on that day. Having engaged an attorney to represent him, he naturally assumed his> rights were being properly safeguarded, and that the attorney, at least, had knowledge of the purpose for which he was taken from prison. In view of the sеriousness of the charge, and under all the circumstances, defendant should net have been forced to trial without counsel, and ample time should have been given him, or reasonable efforts made by the court attendants, to notify his attorney of the intention to try the case. Even though de
Tbe judgment is reversed and a new trial granted.