*1 5á0 subject contempt regard proceeding for the court did importance violation decree any great court’s enforcement as of equitable prevail, but in con where considerations approval and that the words its they its subject penal- troversy premise are likewise to a severe rested ty, Thus, court of with a in a civil action. lodged enforcement was recovered aon cita we think equity, ample urgent there is more reason for which had facilities person -or protecting naming respondents in an order contempt

tion for individual Commission,predicated upon the court. of party improperly brought find- before previ ing responsible court’s such individuals were No mention was made corporate violation, So than there is in Education ous the Standard decision 113, 82 an ciety case, 58 S.Ct. order of the 302 U.S. Labor Board. was concerned the court where L.Ed. may While under the cases there Trade Com the Federal with an order of opinion, room for differences of it is our mission. view and so Commission hold dif- there is a fundamental We think order, authority is without to include in its by the Labor an ference order between “officers, agents, representatives and em Trade Com- by one the Federal Board and ployees,” finding the absence of other result mission, suggests a different which solely corporation. than those directed at the agencies in the orders of two petition to review and set aside the remedy is No respect under discussion. order, Commission’s is denied and the order enforcement in- the former lodged conformity modified in with the views here- than to desist order other of its cease and expressed, is affirmed, an enforce- enforce- appropriate court for ment decree will be entered. ment, 160(e), and when Title U.S.C.A. § obtained, it enforcement decree subjects court, which of the a violation of contempt. proceeding for to a the offender Regal pointed the court And as case, page Company 324 U.S. Knitwear be within it would 65 S.Ct. clarify its court to of the discretion sound play. of fair decree the interest Commis- Trade Federal An BALDI. order rel. SMITH v. UNITED ex STATES scope. It is however, wider of far sion, No. 10433. to that similar procedure in a

authorized Appeals United States seek an Board to applicable Labor to the Third Circuit. court, appropriate in an decree enforcement final, either April 20, order becomes Argued but when its ap- parties non-action 20, 1951. Oct. Decided granted remedy not proval, has a further Act Sec. -Board. to the Labor 45(l) partnership, or person, provides: “Any an order who violates

corporation it has and desist after to cease

Commission order is in ef- while such final, and

become to the United pay forfeit shall fect, than penalty of not more a civil States violation, shall accrue

$5,000for each be recovered United brought by the United action civil in a

States.” “officers, rep- agents, unnamed Thus, the Judge, Biggs, McLaughlin Chief only Judges, are not Staley, employees” dissented. Circuit resentatives

5ál 5i2 *3 Philadelphia, McBride, Pa.

Thomas D. Levin, (Herbert Michael Moschzis- S. von ker, Philadelphia, Pa., brief), on the for appellant. Ryder, Atty.

Randolph Gen. Deputy C. C. (Colbert McClain, Asst. Atty., Tracey, Jr., First Dist. W. James Pa., Atty., Philadelphia, Robert Asst. Dist. Atty. E. Woodside, brief), Gen. on appellee. BIGGS, MAR- Judge, Chief Before Goodrich, McLaughlin,

IS, kal- ODNER, HASTIE, STALEY and Circuit Judges.

GOODRICH, Judge. Circuit appeal is from a This District Court the East- United States Pennsylvania, en sitting District of ern banc, cor- dismissing a for habeas Smith, pus filed behalf the relator. a long history. case has by three judges was considered Court and Terminer Philadel- County. phia It has been twice to the Su- Pennsylvania, preme Court once States, Supreme Court United twice District Eastern District of and twice to this history fully opin- Court. The written in have come during down ions proceedings course the various concern- shall, therefore, ing state, Smith.1 — Cir., 1950, diction), affirmed 3 Commonwealth v. F.2d Conviction 847; Philadelphia, Terminer, ex rel. Smith v. Ashe, (unreported), 71 A.2d af 364 Pa. cer March filed (1949). 340 U.S. denied S. 66 A.2d 764 tiorari firmed 362. 597; Corpus L.Ed. United States ex- ex rel. Ct. Habeas —United Baldi, D.C.E.D.Pa.1951, Warden, D.C.E.D.Pa.1949, rel Smith 87 F. Smith Supp. juris- F.Supp. (dismissed for lack of 5i3 re- as are been certiorari point, reviewed. That point only such facts from de- shows, argued, in- fused it is that no such questions bring out the necessary to was, it privation alleged. There even volved. pointed out, such direction killing. Smith starts with a there Burke v. was in gun drew in a taxi cab passenger while a 941, 70 Georgia, State of S. U.S. almost killed He was the taxi driver. petitioner to allowing Ct. 94 L.Ed. ad- He has been immediately apprehended. proceed in with- the federal district court guilty murder in the judged prejudice peti- from denial of killing of the death. The and sentenced to tion for certiorari. This taxi driver denied. *4 forced not has a man been is a case where subject The last on the word Su- a it where into a confession. Nor is case a preme Burford, Court Darr v. 339 is be- been overreached 2 friendless man has 200, 70 94 U.S. S.Ct. 761 The L.Ed. have legal cause he did not counsel. proposition in that not decided case does that Smith’s claimed long shows record immediately applica- us here. concern If intelligent- vigorously rights have tion for every certiorari must in case be questions events ly turn asserted. The made to final state review the court action which will trial course of Smith’s corpus before resort to may be had habeas points them arising out of be stated as the federal in a court, has been condition up. are taken fulfilled. question Our narrower What is: effect in the federal lower courts is be Federal State Jurisdiction given to the denial of certiorari the Su- First that Smith not be noted preme Court? Court, through Mr. States; he was prosecuted by United Reed, says, 339 U.S. at 70 S.Ct. Justice accused, Pennsyl- convicted the tried and page 94 L.Ed. 761: “It is Court’s decisions vania courts. Citations of federal conviction that orderly procedure federal Hudspeth, Cir., Frame like under system our dual government de- they F.2d are no value us unless mands that highest the state’s courts should points raise the same constitutional ordinarily subject be only reversal corpus sought for present when habeas a is system Court and a state’s ad- once to prisoner. state Smith’s case went justice ministration of should be condemned Supreme Pennsylvania on the inadequate constitutionally only by this imposed the Court of a sentence Court.” It was before again and Terminer. The doubt-creating word is “ordi Pennsylvania in ha- narily.” When should a district court and corpus proceedings. beas The basis appeals again a examine merits? prayer was the writ same as Our inclination would naturally say tobe before the federal courts. The Su- now “never.” It is highly uncomfortable for preme denied those of us in not of last courts resort to sit by the certiorari was denied Su- writ and is, effect, in what review of highest preme Court of United States. court of a state. The responsibility is one every question before us has been de- So from which we glad should be be re adversely Smith’s contentions cided lieved. But Darr v. Burford say does not refused review Court has that denial certiorari relieves us. The signifi- What certiorari. through is dissenting in that points urged upon It refusal? such cance of given that no directions are the lower fed signi- that it is respondent highly byus point. courts eral on the It argues if would be un He ficant. seemly deprivation argument for us make a had shown way for certiorari either questions upon rights case would which our superiors constitutional Schilder, 1959, Cook, 1951, rel. United ex U.S. Gusik U. involved court- L.Ed. S. S.Ct. L.Ed. 215. S.Ct. also Dowd v. Cf. conviction. martial 54á he such that time shooting th^ clearly that what

differ.3 think We could be of murder. contrary, convicted do, we are told must until rule that well established to follow the right not to constitutionái Has a man a any- prove denial certiorari does or not to “insane” tried executed be denied. certiorari was except that thing committed penalty for crime meet the corpus has applicant for habeas When the imposition that condition? while Is fulfilled a he has petitioned for certiorari case, ’in. in such responsibility of criminal certio- requirement. procedural gets If Black, so “offen- the words Mr. Justice questions bewill ad- rari constitutional liberty principles to the fundamental sive Supreme’ judicated merits all our justice lie at the base of apply to not, may he does Court. If political that it vio- civil and institutions” court for appropriate lower federal process?5 due do lates substantive compelled, the rule writ. seems This violation may no know. decided, by Burford con- if not Darr v. provide federal Constitution for state expressed therein.4 siderations insanity of commis- time by law that conviction, bars longer sion of crime that we are reiterated But it to be same sentence execution. The *5 the correction court for appellate not an at the time incompetence true as to mental point Each state law. under errors trial, We are sentence or execution.6 relator to tested raised is questions. upon not to decide these called rights un alleges whether it a violation noth der the States Constitution: United up The called reason we are not have been ing allegations more. these That is on to decide them that does highest state decided on the merits disregard mental condition of de not a weight by given is great a to be fact According to its fendant accused of crime. petitions upon in passing district court a right not to substantive a man has the re corpus. But does not that fact habeas pay the penalty stand trial or for an if act to duty pass lieve federal court of mental is to condition such as fulfill not upon petition. the merits of the 7 legal “sanity.” recog-, test of And it insanity nizes the familiar rule that at its District Court exercised The acquittal.8 requires offense time of the to pass decline “discretion” to procedural to Smith entitled due not think it had such discre merits. We do process in of these protection observed whether, tion, proceed consider rights though substantive even substantive true, factually sets forth a vio process compel rights not due would federal Constitution. lation of the given. Insanity a defense under being law, process guarantees due Allege Vio- Relator’s Petition Does present all opportunity defendants fair Due Process? lation of defense. So examine must the con tentions relies (1) have to on points do with wheth- Smith’s charge that he subjected was such could er his mental state him tried; mental state at (2) process whether his. treatment which not due was of law. concurring majority, Compare Cir., 615; McGarty O’Brien, 3. 2d v. Burford, opinions dissenting in Darr v. 151. F.2d supra. Duffy, Phyle v. 5. See U.S. concurring Justices three 4. two The L.Ed. 68 S.Ct. dissenting in Darr v. Burford Justices Balkcom, 1950, 6. See Solesbee U.S. agreed of certiorari means denial 94 L.Ed. 604. 70 S.Ct. joined nothing Dictum in merits. on majority Ragone, 1935, 317 Pa. 7. authority. see no available best 113, 176 A. therefore, advantage, in citation dis 1351; § Pa.Stat.Ann. Com great cases 19 Purdon’s number of cussion Ashe, supra However, Smith v. ex rel. point. monwealth cf. United ex Warden, Cir., 1951, 187 note 1. F. Auld v. rel. argument exaggerates first is that overreached” The im he was portance arraigned. arraign- rights when he Prior to under the statute relied jail. on. hearing ment Whether a on mental condi Smith had been confined day arraignment relatives had in limine granted before tion will he rests in procured private him. That sound discretion judge counsel for under Penn yet sylvania opportunity counsel had not to en- law. The discretion is review able, appearance nothing judge may ter his and knew but so broad that the re arraignment. point. set for So fuse even to hear on the time when evidence alone, prisoner up plead Commonwealth, stood Webber v. 119 Pa. Joseph the court suggested Ales- A. Smith lost, most there sandroni, fore, Esq.,, a of the Philadel- was the have the member chance to judge be phia arraigned Bar who in the fore good whom he standing exercise this time, Mr. broad grant courtroom at the stand with him. discretion whether a trial limine Alessandroni not and had on the did know the time. but a consultation him. moment’s We conclude that the loss of such advice, plead- Smith, on Alessandroni’s Mr. prejudicial an opportunity was not so to de guilty. not ed fendant amount of due violation this arraignment lack of constitute Did process. Due go does far so process? due It is little hard see how condition, require toas on mental hearing entering deprive not guilty can particular any particu manner or at of any rights. holding man cases In the stage lar proceedings. Certainly it required' the Fourteenth Amendment require does hearing limine arraign- effective assistance of *6 question as counsel for relator contend. plea ment guilty a of had been entered.9 requires, The most that it view, in our possibility prejudice such in cases opportunity adequate hearing have is obvious. But it here that argued be- question guilt before is finally de not, counsel oppor- cause was had no and termined. be, Under tunity law defend previous informed of Smith’s ant still history ques had to submit mental at the time could tion of arraignment special capacity ask for trial his mental to stand a to test trial there, his provided by then as jury try which would indictment.11 Pennsylvania provides law.10 of effective Lack as- also a means for sistance special inquiry of counsel in the loss of into resulted mental accused’s con says relator, right, this valuable both such dition while defendant custody in loss is lack due awaiting appearance law. trial12 in 10; Act March 19 Purdon’s Pa.Stat.Ann. ly Kaiser, 596, certiorari denied S.Ct, an offense found to be Purdon’s 89 L.Ed. 398. Cf. Council v. S.Ct. State See, Webber v. “The impanelled Michigan, 1947, 91 e.g. of 216, same L.Ed. had, Pa.Stat.Ann. Illinois, 1946, De Meerleer v. U.S.App.D.C. 74, shall, upon arraignment, 91 L.Ed. L.Ed. 540. Commonwealth, supra; 323 U.S. for [commitment] 584; lunatic, by 31, 1860, any person 329 Carter § purpose 172; U.S. 329 U.S. People P.L. § 177 F.2d 663, 65 S.Ct. U.S. jury indicted for Williams v. proceedings People Clemmer, * * 67 173, lawful- State § S.Ct. 67 12. for in a pertinent part; physicians, tal ent, * awaiting Purdon’s shall, said tained said diately detained [of two doctors and a amended Tbe Mental Health * * to make it diseases. The said superintendent person judge order an in tbe jail make hospital be trial or May 28, for Pa.Stat.Ann. any prison to a ** insane, physician, necessary application inquiry proper hospital “When for undergoing * 1937, other * * ^[*] commission mental'diseases, lawyer, judge in such Act of § P.L. * * * that he warden any person commitment reason 48 * * * two superintend- sentence, 973, provides shall shall forth- who shall condition 1923, for men- be cared whether qualified * * * * * * § imme- [etc.] 1, to de- 50 as or in Philadelphia This evi- Hospital. men- of defendant’s

court.13 General open dence had ability to trial remained revealed tal stand New York different been raised in several committed an institution could conclude, by subsequent ways order a New York court arraignment. after report. At therefore, a mental did not examination that even if diagnosed provide “effective institution his condition was defendant with assistance praecox, there arraignment, counsel” at he suffered dementia he remained deprivation for four as- being constitutional months before discharged federal appeared recovered. It also at one right because it. time voluntarily Smith had him- committed Following arraignment trial Smith’s Hospital Philadelphia self General request postponed was several times at because he was afraid he was to kill going get lawyer. of his The latter wanted someone, days. but was after ten released New from York material relative to Smith’s After hearing of October hospitalization mental institution there. in a appointed Dray-ton, psychiatrist, Dr. William Upon privately the statement of re- Drayton to examine Smith. Dr. Jr. 14 money tained that no available counsel was did so and at hearing November ap- to procure information, such the court 1948, reported his findings sub and was pointed attorney state- him and another jected the district attor questioning appointed made Smith. This ney, lawyers. the court and Dr. by Smith’s possible subpoena wit- the records and expressed Drayton’s pris that the view was nesses a matter which took York, from New perfectly oner was sane both at the time of meantime, some time. In the after consul- him, killing and at the time he examined attorney among the assistant district tation purpose “faking” was avoid case, charge lawyers defendant’s ing trial. The trial court concluded and, least, plea trial part judge, sane both the time of trial and of not withdrawn at the he killed the taxi time driver and en Septem- A hearing entered. tered a guilty in first de the Commonwealth’s ber gree and the penalty fixed at execution introduced, it agreed evidence being electrocution. hearings further would had at which *7 On it said it is behalf Smith is produce defendant could his evidence. process provide lack of due to to of law fail hearing a On October second psychiatrist public a at expense to assist at had rec- which defendant introduced lawyers defense in a case a involves hospital York testi- ords from the New prisoner’s indigent sanity. of an mony examined of several doctors who had prosecution may psychiatric such there, well records from 48, supra, Purdon’s § Pa.Stat.Ann. findings judge]. report their “When, production on the continues: or judge may, discretion, sum- said any charged appearance person with other witnesses secure further mon * ** offense, appear it shall criminal then If he is satisfied evidence. person insane, is the court such to * * * insane, person in fact is he it in such condition as to make neces or person transfer of shall order the such sary for in be observed cared that he hospital for mental a diseases. proceed hospital diseases, for mental a ” person ings of such for the commitment applied to the court Eelator’s counsel * ** hospital had a shall be to such appointment such a Commis person application upon of some only was denied but it because mission provision designated by This the court.” application. such make the warden disregarded appears to have been over Barnes, v. See Commonwealth by counsel. looked The warden refused 124 A. 636. Philadelphia apply of the General Hos- refusal 14. Chief Such is review it. 1926; department pital psychiatric by since See Commonwealth mandamus. able Philadelphia neuropsychiatrist Ashe, 1950, Mu- in the rel. Smith v. 364 Pa. ex pro- 1922; nicipal A,2d associate since denied certiorari neuropsychiatry in the Graduate L. fessor S.Ct. U.S. University Medicine of the School of Ed. 597. Pennsylvania. consultation, Drayton open said, relator cared of Dr. prove “to make is fairness, court. argu- is Whether the sane.” Doctor’s Fundamental runs, requires scientifically, ment to accurate privilege same whether it was expense examination, given public at reached after these to the defendant sufficient questions he going weight There is and other pay cannot for it himself. surely re- the evidence nothing to indicate that not before us record are quest corpus proceeding. was ever habeas help for such made. As- was, sume that it claims. however relator Our conclusion is in accord issue recently with First reached Cir fallacy, believe, There we McGarty O’Brien, quoted cuit in from psychiatrist the assumption that the above. In case indigent defend upon prove called the court to capital ant’s mental condition in sane. He was called the court put in issue. He was examined suggestion lawyers, give of Smith’s psychiatrists two acting in behalf of professional court the benefit of his Department Massachusetts of Mental opinion, he re did. After made his pursuant psychia to a Health statute. The port open fully court he was cross-ex reported psy trists that defendant had a amined. The “prosecu doctor was suffering copathic personality but “not witness; tion” he was the court’s witness. from mental or defect which disease important pointed This consideration was responsibility.” affect would his criminal First Circuit a case recently in requested Defendant’s then counsel that he practically on all fours this issue of employ psychiatrists allowed two case, case at bar. In that McGarty v. expense Commonwealth aid in O’Brien, Cir., 1951, 188 F.2d request the defense. The was denied. The “The designated by said: doctors Appeals affirmed the District Department of Mental Health to make the corpus Court decision on habeas that this prose examination are partisans process. did not denial of due constitute cution, though paid their state, fee is by the “ * * * report by said examination any more than assigned competent impartial experts sup two prosecution defense beholden to merely plied expense enough, think, at state is, compensated because as here, by the satisfy the state’s obliga constitutional given state. Each is purely professional tion under the due clause.” Mc job represent to do—counsel to the defend Garty O’Brien, supra, 188 F.2d at 157. ant ability, to the best of his the designated psychiatrists impartially to examine into agree. only difference between report upon the mental condition ac what McGarty Massachusetts did in the cused.” case and what has done here *8 psychiatrists is that in Massachusetts two Furthermore, . great we have examined defendant instead of one and difficulty in accepting proposition as a of they appointed by independent were constitutional law that one accused of agency by rather than the court. Such a public crime is entitled to receive at expense difference not does amount to the granting, all the collateral assistance needed make process of one due in and its denial in the was, his Here public defense. Smith at ex other. pense, given thoroughly two competent lawyers. The argument same that would In connection with the ad psychiatric entitle them journed hearings above, consultation mentioned there them point would entitle by consultation with bal is one the relator made which has chemists, experts, engineers, listic biolo caused us serious concern. It said that type gists, any expert help judges of or whose in a court of three convened to hear particular might plea testimony guilty, case be relevant. We do the after of made requirements adjudication not think the of of due their first murder event, any In go they far. Smith so had here before heard Smith’s evidence and past any the medical history the benefit of heard evidence thereafter was con lawyers only mitigation further examination whatever his sidered in determining of ity, consider withdrawal imprison- the court would penalty life whether the should he of course plea ‘Guilty’.” During the en- of docket the ment death. There are some or was indictment, hearing such evidence tries, of the at which the endorsements on facsimile, made following was heard the statement which we been furnished a have judges: of one the of and remarks the a matter Pennsylvania15 indicating that as you he “Judge Don’t see what Carroll: thought somebody, least, of at dates your prepare doing; helping you to he is argument was From this the so. comes case of this when the trial resistance of this degree murder prisoner’s guilt the may come, 'when comes, not which evi- judges his before was settled de- plea be withdrawn will nev- presented, on, dence ever was Later tried.”' fendant will have question of opportunity have the er had New hospital in after of the the director ability purposes sanity, guilt his release York Smith’s who had authorized trial, considered. stand praecox dementia diagnosis verified the and stated that at time release carefully argument has been consid illness from mental recovered it is invalid. with conclusion that ered colloquy en- had, following which he on behalf of produced If the : sued create doubt prisoner had as to been such Levin “Mr. defendant]: [counsel with moved to guilt he could have his proceed examine him further I Shall plea plea guilty and enter draw the that sat- the -face of that statement? Does a motion Action on such guilty.16 not uncertainty isfy any your Honors Pennsylvan would have been reviewable regard withdrawal have had judge also that ia.17 We understand plea? of the plea guilty can the withdrawal order - plea my that the “Judge direct Guerin: does not to idea. own motion ‘and his There is no indi guilty be entered. of not issue, “Mr. Levin: I think raises suggestion motion any s-uch cation that sir. prisoner. on behalf was ever made Sloane; certainly I “Judge am guilt or Nevertheless, opinion now he was- and lucid in Octo- sane until open the trial court it was ” lack of * * * ber of 1945.. guilty was entered psychiatrist, At hearing last Dr. least, latter, penalty at fixed. Drayton, asked court whether the dock Whether February until sane, knew Smith was the dif- -accuratelythe status et entries reflect wrong, between knew ference think that reason to see no case or killing nature acts the time having his precluded from time was examined. These judges three whole considered questions excerpts quoted above, and the to- It was so court. the trial who constituted gether agreement under which the considered, shown below. as is accepted, make it clear to corpus states us, for habeas evidence, without need of further plea was entered questions guilt ability when to stand attorney and counsel, open the district trial during receipt were still *9 York the New records agreed that defendant’s evidence mental con- relative to san- of Relator’s doubt principal purpose an issue or “raised evi- dition. Smith, 1949, attorney’s 362 Pa. v. to a district 15. Common-wealth in- * * * provided dictment.] 66 A.2d fur- ther, may That the defendant withdraw Ashe, v. rel. Smith ex 16. Commonwealth plea any guilty, time before 107, 117; 71 A.2d 364 Pa. sentence, by leave of the court.” Shawell, 1937, Pa. Commonwealth 16, supra. note Cf. Purdon’s Cf. A. 17. person Ashe, 1940, accused of “[A ex rel. O’Niel v. 337 Pa. § Stat.Ann. may in homicide waive than A.2d 404. other crime jury plead guilty grand dictment court in de- times order might get aid the that his counsel been to dence obviously testimony con- the penalty, records and al- termining but it was out-of-state ready every step case as At the whole referred to. on the merits of sidered way unpublished opinion legal has had ex- reading A counsel. He was well. impartial apparently our conclu- substantiates amined an the trial court qualifiedpsychiatrist appointed court determined the court sion. discloses killed at the suggestion when of his own that Smith was sane both counsel. The tried. That three judges he was who on his the cab driver and when sat case in first only possible for instance being joined so conclusion an a substantial degree portion first guilt of which court to draw was devoted to not disclose mental Supreme does condition. The murder. The record guilty, but original judg- motion to withdraw the affirmed the ment; made, un- its refusal it also request through went if such the case at presents nothing length upon petition corpus. these conditions der habeas of a federal court. the consideration inquiry An was made into relator’s sani- ty; testimony by apparently qualified relator Argument behalf expert impartial Supreme received of Penn suggests Court point and, pointed above, process by cross- sylvania violated due consider examination had. We nothing find was not it in dis which ing evidence which before process lack constitutes a of due corpus petition. This of law on posing habeas basis anything appears testimony consisted taken evidence record before us or what the corpus charg- proceeding in the relator in the first habeas es. District Court for the Eastern District District Pennsylvania. proceeding terminated This Court will be affirmed. corpus proceeding in habeas before the Supreme BIGGS, Judge, Chief and McLAUGH- the relator

petition was dismissed because STALEY, LIN and (dis- Circuit Judges lim time outside the territorial at the senting). Relator’s ar its of Eastern District. Supreme gument was that court below not grasp did the nettle Pennsylvania pulled testimony presents this some of which this case do nor we think it gratuitously by majority its it is into consideration seized of this court. with agree that it was done denied either According petition to the and the evi acquiescence ment or of relator’s counsel. dence introduced in the court below the very inBut Smith, relator, defendant, indigent now corpus for habeas twenty-six years of age, history has a petitioner proceeding refers to and grave mental illnesses. His record testimony of what the gives version es Army United States indicates rec hardly it can be lack We think tablished. ognition of his disorders.1Having Supreme Court to’re for the of due schizophrenic, found to be a he was ad him fer to the when the relator judged insane a New York Court.2 He self did so. also asked be committed to the Phila delphia Hospital reading of all exhibits indicates Naval because, A the. according prisoner statement, has received careful own he was afraid he Pennsylvania might someone, at the hands of the kill treatment but he was transferred protection Philadephia courts in the of his constitution- Hospital General be rights. postponed cause trial was of lack of al His several facilities.3 Some time Appeal People *10 to the See Record on Indictment No. Pennsylvania, year 1945, County Court, Kings County, Court of 137, January Term, Id., supra, pp. New York. No. 118a-119a. p. 166a. seq. 3. See id. 140a et adjudication Judge Sioble previous for alleges thereafter committed the crime relator that he he also ly adjudged by which he tried and which he has con had been York insane a New 1945; State Court in fessed. that because of his poverty privately engaged- his counsel4 corpus petition for filed in habeas procure was unable to relating the records incorporates By Smith by the court below to insanity Brooklyn his from the State petition allegations of reference the Hospital confined, where he had been that by him in corpus previously filed habeas private this counsel withdrew because as Pennsylvania. Both Court of counsel he could not obtain these records pertinent petitions as is to allege, insofar money, without thereafter, but 'that review, sentenced to that Smith was attorney same and another member of the Terminer, Oyer and death Philadelphia Bar designated were Philadelphia County, having he been found attorneys Smith’s the Court order to degree. guilty of the first murder in procure Brooklyn Hospital State rec alleges he was insane that ords. the crime on time of commission of alleges Smith further that agreed it was January 15, the time he entered counsel, his the Assistant District At Guilty”, he plea “Not at the time torney and the Court that if the relator plea “Guilty”, that changed he that plead guilty generally would charge to the insane. still of murder records his mental illness instant two before He avers procured, es could be that if such evi arraignment in the Court of dence raised an issue or even a doubt of Terminer, Judge presiding sanity Smith’s would the Court consider Philadelphia Bar, directed a member of plea withdrawal “Guilty”. before, him to instruct who had never seen alleges agreement that this upon; was acted him as to the formal answers which was plea that he withdrew Guilty” “Not plea give, including Guilty”, of “Not September 21, 1948, and on viz., on the same thereupon pleaded Guilty” “Not that he plea day guilty entered, procedure and that because at ar- found him raignment opportunity lost his having murder without received the Brook pursuant in limine determined lyn Hospital State and other records in evi Act March dence on his behalf. Section 19 P.S.Pa. 1352. P.L. § Hospital, they State following since counsel, momentary were material This sanity. the issue of Relator’s attorney appearance was di- who preclude delay, “12. To further and Terminer and- the Court rected being agreed by arraign- conferees that un up at his with Smith to stand ment, Pennsylvania law, court-appointed der engaged privately with, provided psychi counsel could not be mother. advice, atric examination and it was fur petition to 5. The agreed counsel, ther between the District respect issues these Attorney plea and the court that the alleges that: changed ‘Guilty’, the Common therefore, When, no counsel were “10. present September wealth its Sep fixed been trial had tified banc, 2 case be then st court before en that the 21, 1948, they conferred with tember postponed sufficiently to al Guerin, whom L. Charles Honorable subpoena low counsel to the New York assigned trial, the case records, records, these when McClain, Dis Assistant C. evidence, Colbert trict introduced raised an issue charge. Attorney in This conference sanity, or doubt of Relator’s the Court foregoing pre-trial, and the facts occurred plea would withdrawal of consider and Relator’s and counsel’s ‘Guilty". revealed were predicament was made known. Thereupon, “13. Relator’s changed ‘Guilty’ conference, September 21, counsel for such At “11. their desire to also mentioned Relator September day, “14. On same allow the trial have subpoena Brooklyn adjudged the court relator records *11 below petition not de- filed with the court that the' avers did expressly plead, participate does not that Smith capacity allege to to termine his by Supreme co-operate process coun- denied due the hearings in with the or to Pennsylvania re- failed Court of of its defense, that the Court because sel in his own part fusal the grant large to supply psychiatric to him- assistance writ. A with argument counsel relator’s and that his oral his briefs without such assistance represent adequately proposi- him. in this court was devoted were unable tion, however, alleges he had de- further that after to avoid a technical fect, in the adjudicated guilty been of murder by one readily which be cured Ter- degree amendment might but otherwise re- miner, banc, Brook- sitting en received the justice, sult defeat we will treat Hospital records, lyn State the records of petition below, filed the court did as voluntary confinementin the Phila- tribunal, containing necessary delphia Hospital testimony and the General supplementary allegations ques- raise Jr., Drayton, psychiatrist of Dr. William constitutionality tion of the action by the Court him. to examine He directed Supreme taken Pennsyl- Court of asserts that Court thereafter sentenced vania.10 The court below a rule issued death; appeal him was taken to show cause petition based and there- Supreme Court of which after, banc, sitting discharged en rule judgments affirmed the of conviction and judges denied the writ.11 Three dissent- petition sentence thereafter a majority ed. The held that a United States corpus Supreme habeas was filed with the district court high- should not reverse the in which reference est tribunal of State a case where the testimony was made to received constitutional issues disposed had been corpus earlier habeas proceeding filed the on the merits and where there had been no United States District Court for the East- process denial of due of law the State Pennsylvania.7 ern District of peti- proposition defendant. With that Supreme tion filed with Court of Penn- are, sylvania8 course, law we in accord and if the denied and certiorari was facts at bar principle made the applicable denied Court of the United States.9 there would be no dissenting here.

Smith asserts that The three dissenting judges reason of the fore- in the court going position denied below took due of law that the record dis- guaranteed to him closed testimony Fourteenth was taken in the corpus Amendment. habeas proceeding before the Su- Murder the first without hav- 7. See States v. United Warden of Phila ing delphia County Prison, received D.C.E.D.Pa., evidence without hav- ing F.Supp. 339, Cir., considered the records as to or the affirmed 3 181 F.2d sanity, capacity of Relator’s 847. change plead plea Guilty, Not Ashe, 8. See Commonwealth v. 364 Pa. participate hearing, coop- Guilty, in the 71 A.2d 107. counsel, and make his defense. erate Ashe, October “15. On Novem- 9. See ex Smith v. rel. al., Warden, court heard tes- ber further et U.S. 71 S.Ct. penalty only. timony Al- issue L.Ed. though raised a dohbt petitioner supple- 10. The asked leave to capacity and mental to Relator’s petition ment a later date. The trial, participate plead and stand preparation time cooperate hearing, with counsel petitioner since short was about to be defense, was not make his supplementary pleadings No executed. permitted to be withdrawn.” filed, however. See application Baldi, D.C., United States v. 764. No A.2d 96 F. Supp. was made certiorari United States. *12 by Pennsylvania transcript proceedings

preme that these the of Court of ' agreement but any Smith’s counsel when that whether that Court had facts before any objection counsel to this actually find made vehement whether it made had stating statement ings Characterizing and filed an affidavit of fact was not clear. he receipt of the premature, the of the the not consented the dismissal suit as transcript, Supreme Pennsyl- correctly the Court dissenting judges concluded pursuant changed opinion, provisions vania note its of Section cited to Code, Title and stated therein of the United the court be that the record States summarily corpus proceedings earlier low should have and de habeas had been heard disposed acquies- received in evidence termined the “With the facts should have bar, justice required. cence, respective the matter as law and * * * appeal disposi ”. See the decision cited in note bar followed. supra, complicated appeal 109], tion the con A.2d [364 vigorously counsel asserted fused state of record.12 in the court be- low and has asserted here state- the view The court below was of ment any is incorrect. But in event it only presented issues of law were and de- disputed questions clear fact were cided the case on these. It no made find- presented 'by petition. they If be re- ings of fact. Since court below made solved in the relator’s favor was in- findings of fact did not select sane at the time of the commission of the designate what was true and what was crime, at the arraignment, times of his false, we will take those inferences most hearings, adjudication guilty de- favorable to the from relator the evidence gree murder, and at time was sen- supplied by the exhibits admitted before Insanity tenced to death. at the time of the regarding court below. So the evidence commission of complete a crime is a de- we reach the conclusion that the order of Pennsylvania fense in person for an insane the court below should be reversed. cannot be of murder. is stated This For set immediately the reasons here- categorically Supreme Court inafter we conclude that the Common- Pennsylvania in its decision in Smith’s wealth of did not afford Smith corpus proceeding. habeas Commonwealth due guaranteed of law as himto Ashe, v. 364 Pa. 71 A.2d the Fourteenth Amendment: long has Pennsyl- Such the law of Supreme (1) The person vania. Moreover an insane can- testimony. took no receive, did in some legally tried or sentenced. Com- way record, proceed- not clear from the Ragone, monwealth 113, 124-126, 317 Pa. ings which were had in the court below in 176A. 459-460. If Smith was insane at corpus earlier proceedings habeas in times mentioned or at of them which had been received Oc- tober 4 supra. pos- and Terminer See note did power That Court first stated that it sess the find had received of first public pus proceeding Pennsylvania, Supreme Numerous documents were re Court ceived evidence below certiorari tbe eopinion Supreme These include th of to the Court exhibits. of the United following Terminer Phil of a Court denial writ of of February corpus by adelphia County at No. habeas Pennsylvania, Term, 1948, clemency applica case of and the transcript of the record tion to the Board of Par corpus proceedings before that court dons. As proceeding the earlier habeas printed ap record filed in the court below see form F. Pennsyl Supp. dismissing peal 339. The the court on the petition ground original judgment, affirmed from the vania corpus geo pleadings that Smith was earlier habeas outside the graphical limits of proceeding at No. Eastern Court below the the time the writ District Pennsylvania at (of below entitled the court judicial corpus issued. See it did take habeas F. and which to take pleading 2d notice), eor- habeas

553 the issue to hear evidence on refuse even sentence 'him to death. murder or to majority, that sanity. follows, say the The error one of law be correct- was to not chance to lost was the the relator most Oyer and appeal. The Court of' ed discretion. court exercise its have the trial power proceed as to Terminer either had right. very be a valuable us to This seems to power. The did or had lost that ar his prejudiced at because adju- Smith was failing to by coun represented raignment he was not denied the relator dicate this issue .due have informed the Court14 sel who could guaranteed the Fourteenth condition, who as to his mental counsel Amendment. right cause could have asserted Smith’s to designation (2) to As counsel legal discretion. the Court exercise its to Oyer the Court Terminer But law of re the statute arraignment, at the time follow his quired on trial destitute defendant ing extremely pertinent. A-true bill rep murder, assigned counsel to to 18, against February returned Smith on resent Act of March him. arraigned 1948. A week later he was 1, 31, P.L. 19 The Section P.S.Pa. 784.15 § Shortly this, prob this indictment. before ’appointment necessity for the ably night preceding arraignment, indigent capital case ex defendant in a repre Smith’s mother retained counsel to stage every proceedings. ists at of the Pow sit Judge sent him. Smith nor the Neither Alabama, 45, ell 53 v. State S.Ct. U.S. ting Terminer 158; 55, Johnston, cf. L.Ed. Robinson v. was aware of fact. this When Smith D.C.N.D.Cal., attorney- F.Supp. An 774. up arraignment, called to stand for his represent assigned ei to a defendant must Court, counsel, seeing that he without knowledge ther have of his client’s case Bar, Philadelphia called on a member of arraignment advance of a rea given or be who had before knew never seen Smith opportunity sonable inform himself of nothing up him him, about to stand possess capacity that case if 'he is to and act as Under counsel. the direction represent attorney client. If does attorney, said, this the relator possess knowledge representa not such Guilty”.13 entered a of “Not At require tion is sham and will not meet the point, alleged, lost if the facts are as ments of Fourteenth Amendment. viz., right, right a valuable to have arraignment conclude that Smith was sanity in limine under the Act determined Burke, overreached. Townsend v. 334 U.S. 31, 67, March P.L. Section 736, 738-741, 68 S.Ct. 92 L.Ed. 1690. P.S.Pa. 1352. § majority of this court holds The majority court conclude that Smith could still have submitted the importance exaggerates this view of question impanelled of his a jury They Section under try him on the indictment. The 1860Act point hearing out that de- whether a on a provides. procedure indeed so of hav- granted fendant’s mental will be condition ing guilt a defendant’s or innocence tried in limine rests in sound discretion of jury same determines his san- judge trial under the Act o'f ity concept proc- strains the modern of due 1860 and held that that discretion has ess to the if it limit does not exceed the Commonwealth, broad, be so Webber bounds of the Fourteenth Amendment. The may 119 Pa. judge 13 A. perhaps may Act be considered as a Philadelphia Philadelphia Bar The member of the suddenly Bar who so may justly represent criticized. He acted in him at called good arraignment. faith at direction of the any lawyer competently and as could Act as Cf. the amended the Act of have under the circumstances. April 6, 1949, P.L. Section 1. See suggestion Burke, page 14. There is no the record Townsend U.S. judge CoUrt 68 S.Ct. L.Ed. any greater knowledge and Terminer had the note cited text of Mr. Justice background opinion. than the member of Smith’s Jackson’s 55á allegations petition, set a de- days when vestigial remnant 5, supra, present striking analogy note defense. testify in his own fendant could Senauskas, Commonwealth v. 326 Pa. posi- majority’s But the short answer 70-74, In that Mr. A. 168-169. agree- due to tion lies in the fact that Kephart Chief stated: “It and dis- ment, hereinbefore referred Justice *14 generally judge a stated for to make that a infra, between point (3) under cussed bargain, promise in ad- engagement, or District attorneys, Assistant Smith’s the case, irrespective vance a hearing the of agreed to of Court, Attorney and the might what evidence show was ever jury no plead guilty generally and of the thereafter what he and as to to upon in his case. called to sit facts therein, judicial be should render would re- (3) bargain agreement, or As to the uni- agreements have misconduct. Such well as in immediately above as to ferred formly binding ef- been held have no to opinion, of this paragraph the seventh fect, incompatible they are with pleaded guilty in order whereby Smith that powers judicial or duties of officer. The court-appointed procure might counsel judge, failure an of a who into enters Brooklyn hospital records from the agreement comply type, of with his this to Hospital and his relating State to illness promise to gives to defendant the

adjudication necessary insanity, it to of is plea plea guilty withdraw his of enter of make extensive statement somewhat plea theory of guilty, under the evidence the record. binding guilty defendant is fear, promises, privately persuasion, when induced 19, On March 1948 Smith’s ignorance. Indeed, petition made under the a confession engaged counsel filed a 1923, re- would not be Health Act of under such circumstances Mental State, 1937, 973, Morgan May 28, ceived evidence. In v. P.L. Section as amended 994, plea 243 P. appointment of a where a for the Okl.Cr. P.S.Pa. § prom- guilty was entered in reliance on a inquire into mental to Smith’s commission leniency, judge to ise of which the failed petition dismissed on This condition. ‘* ** by, the court said: April 2, Ter- abide circumstances, the that, under these inquiry an could be think holding that such miner permitted to superintend- defendant have only should on motion ordered plea guilty withdraw his substitute jail in a crim- warden ent or ” plea guilty.’ therefor of not custody. See note inal held defendant Barnes, 16,infra, and Commonwealth allegations petition true, If the be 124 A. and Commonwealth v. Terminer in entered Baldi, R. Dr. Dunn, 47 & Co. Pa.Dist. whereby bargain to a with Smith towas suit, Superin- respondent in the instant plead guilty generally in rec order that the Prison, Philadelphia County tendent Brooklyn Hospital might ords of the State apply have procured the Court to such refused be introduced evidence inquiry bargain, his behalf.16 in that ac- made. Included person charged Judge all were under criminal and counsel with offense * * * appear impression could no commission it shall to the * * * person insane, procced appointed under s'udh ings person as amended for the commitment of such Health Act Mental hospital had, May shall be § 50 P.S.Pa. such a such P.L. provided Baldi, Su are in section hundred S. three Dr. Frederick unless prison perintendent hundred which Smith seven or section three three upon application person act, confined, petitioned the Court some designated appointment Ac to be the court.” Comm of a commission. See Brown, motion, Court, & tually own could onwealth 284, Pa.Dist. Co.R. on its person petition designated some regard Moreover, appointment un without of a commission the stat- Pennsylvania, per which, law of cannot Act ute Health Mental der the granting inquest “When, provides part, doubted as follows: tinont lunacy appearance under common production still (cid:127)on the Ashe In the psychiatrist. Baldi was not a proposi- cording allegations, was the the. p. 106, A.2d case, 364 Pa. doubt as tion that if these records raised stated: Supreme Court of permitted he should be court, con- trial court, was the paragraph “This guilty. withdraw his experienced fact that 5 of with the “12” note fronted out in as set plea of entered counsel relator agreement for the opinion. that the The fact him charging the indictment appear, suggested, one it would person can insane murder. Since no into relator’s own and entered counsel coun- murder, fact that Smith’s of mo- both Court and counsel with the best guilty, plea of freely him a allega- tives, sel entered for If the makes difference. inference reasonably gives rise to the correct, was overreached tions are al- If the believes Smith sane.” permitted plead not should now be *15 Smith’s legations petition be correct of put Acting pursuant guilty on trial. and guilty plea of counsel enter authority, freely most courts did great weight to of whether But come, for him we have shown. questions have as before which such him to have not Smith’s counsel believed agreements aside and set such immaterial. sane or insane is irrelevant and permitted pleas when entered un- guilty, of here, Supreme Pennsylvania seems pertain Court of der the circumstances which conclusion, conclusion require the with- to base a most to be vital withdrawn.17 Not of the and of law was determinative “guilty” drawal of of which Smith’s case, the relator’s of due whole conduct of .grant jury him a trial was a denial on the Superin- of the process the attitude of law. and County Philadelphia Prison. tendent of the express was made if Even no motion withdrawal of counsel for the Smith’s arriving at a conclu- of Such method case, where, plea, been the as seems to have ju- previously received sion of law had not here, insanity relator was seri- of the a? paramount dicial sanction. The vital Oyer and ously question, the of in Court questions trial had to be at Smith’s were and Terminer have caused the sponta sua should sane or whether Smith was insane at the plea. The Court lost withdrawal of time the commission of the crime and at of proceed a with- power without such Supreme time of his Court trial. drawal. seems to two attitudes of have substituted mind, Pennsylvania did Supreme of of counsel and that of Court that Baldi, point. necessary finding In Commonwealth v. Dr. fact meet this of opinion denying clearly habeas (the Smith issue raised the habeás Ashe 93, 105, 107, 113, corpus proceeding. Again corpus), 364 Pa. 71 A.2d we not call do assumption legal legal point mere make the attention to error. The seemed to ap- jurisdictional petition Oyer for the refusal to for the Court Dr. Baldi’s of justified power try the Terminer was without an in- pointment of a commission concluding guilty degree in sane man or to him of first Oyer and Terminer find of Court admittedly But, Dr. murder.18 sane. Smith was p. 72, of the trial Pa. at discretion out in 326 191 A. at the sound rests Green, judge. See Commonwealth and Notes 29 A.2d Pa. Pennsylvania 18. The opin in that the text cited to and 2 provisions makes no reference according to counsel But ion. paragraph of the the fifth Judge below, Flood of the court in the Health Act amended Mental Oyer Terminer considered Court May 28, 50 P.S.Pa. § which Health Act of Mental provides Court Ter- remedy supplying the exclusive sponte may designate miner sua some common law not exercise would application person make to it for lunacy appoint a a commission determine whether a de- commission. charged fendant criminal -offense point Mr. Jus- Chief is insane. We there comments can 17. See Kephart set Senauskas not been tice par preceding in the ad- case referred in the (4) that he was The relator contends agraph, Maxey stated: judged without Mr. Chief guilty degree murder of first Justice psychiatric being day received the same [September “On evidence 1948] other adjudged guilty on his murder Terminer [Smith] up banc, degree by in the com allegations behalf. are summed the court en These first posed opinion Judges Guerin, Joseph L. paragraph the seventh of this Charles support evi- in the Sloane Vincent A. Carroll.” But seem to find substantial case, supra, benefit dence. Since are without the the Ashe we 116-117, pp. 96, 112, below findings pp. 109, made 71 A.2d at fact cannot, important relating said that this issue course, adjudication relator that what the of murder be certain alleges In ab- respect is correct. case was made in Smith’s however, findings fact, February we must shown 4,1949 sence of this was and that most take those from the record the docket entries. Mr. inferences Chief Justice al- Maxey favorable contentions. The contend to Smith’s said: “Relator’s counsel legations be taken to must that Smith was denied due appeal. a most be true That there is because evidence to his mental certain affecting the fact, vitally substantial issue of Court had en condition was taken after disposition at bar and one of murder of the case tered *16 be- by entries degree against should been him. The resolved docket first appear. dispute guilty of low, beyond judgment is as will show that of this case degree on murder was entered first plea changed his alleges September 21,1948, while the entries on the Septem- Guilty” “Guilty” on from “Not entries (which of the bill of indictment back 21, adjudged 1948and he was ber Guerin, signed by and Judges are Sloane day. that same degree of first murder on ad Carroll) show defendant pro- some of the The docket entries of degree judged guilty of murder the first Terminer Oyer ceedings of in the Court 4, February The on 1949.” Chief Justice printed record before in the say: judgment went on to “Whether of Com- in the case Court on September entered on January Term Smith, monwealth 4, 1949, unimportant.” Febncary is appeal from the No. (cid:127) Oyer and the Court sentence of ap- supplemental But attached to the “Sept. Terminer, are follows: pendix in this the brief for the relator L. 453, present Charles Room Court [Hon.] photostatic purport court are what Sloane, and Hon. Joseph Guerin, Hon. copies of the face and the back of Smith’s day, Carroll, Same en banc. Vincent A. The sheet referred indictment. ’second counsel, the defendant his with defendant three signed its bottom the has been Guilty and enters plea of Not withdraws Judges who en banc in Court sat day, after Guilty Same generally. plea a Oyer Terminer. it are aeries of On the Common- testimony, hearing both longhand. The written in docket entries defendant, is the defendant and the wealth “9/21/48”, this figures first of these are De- First of the Guilty Murder adjudged separate line. Then being written on a date gree.” Guerin, Charles L. “Present Hon follows: Carroll, Joseph Hon Sloane Hon Vincent A. In Commonwealth appeal Counsel, on de- with his 223, 66 A.2d the defendant trial, pending below, prison, court, nor the court Neither committed would have Terminer nor Court inquire (insofar compelled into his rec- had before has or complete transcript petition shows) filed as was ord such proceedings filed like or on family. See the Act of Terminer. member July III, § Art. P.L. only Emphasis been added has again amended, 44. See § P.S.Pa. quoted. last sentence supra. note entry of Guilty admitted facts as does the plea to be withdraws his fendant Not that addi- states Generally.” November which Guilty On plea and enters under testimony heard and held tional following separate are written next line of the date insertion advisement. the next follow But words “Eo Die”. On directly above the lines between hearing tes ing separate line comes: “after “2/4/49” adjudged defendant is the statement “the timony the Commonwealth and both for degree” has a! Guilty the 1st of Murder of squeezed Next, between defendant.” place. Un- appearance and following most dubious preceding line and the next last document, the like the other dates on the effect line, figures lie the “2/4/49” bodily figures into are thrust position figures is cut of these “2/4/49” omitted, they were middle of a sentence. If lines. space half the normal between left hearing tes- the lines would read following are written the “[A]fter line On the next timony both for the Commonwealth adjudged guilty words “the is defendant adjudged defendant the defendant the next degree.” murder 1st On All Guilty degree.” in the 1st of Murder normally spaced, line, following quoted fall under of the sentence last would the next two comes the date On “11/5/48”. day on September 21, 1948, the the date of “Additional in order come the words lines contends the which the relator and held under advise heard day generally entered him and separate Then follows on the next ment”. assertion, which, he was according to 'his next On the line the date three “2/4/49”. adjudged guilty murder. “In accordance following lines is written: proof problem however, presented, is one adjudication defendant above have ascertained the court below should pro death in the manner sentenced to figures and when who wrote the words and signatures of the three law”. vided why they were written. page of Judges the bottom of this follow at *17 Oyer copy when the Court we have A of of of the document as said. adjudication of and Terminer entered the photostat pertinent part is at the of this guilty degree of is of the ut murder first appendix. as an tached to this importance. impact the vital most Its way presently As we can see no informed overes due can neither be issue of adjudication guilty the of mur in which of If was found timated nor avoided. Smith degree, 4, February the der in first dated degree plea of guilty murder on a of first 1949, placed proper could have been order Brooklyn guilty generally without State respectively September between entries dated testimony Hospital or other records or 1, 5, 2 1948 1948. The and November evidence being his behalf received in 1948, September 21, entry of which states ir is conclusion that he was overreached plea “Guilty entered a of Gen Smith Johnson, v. resistible. See Commonwealth erally” corresponds with what we believe 312, 349, 351-355, 313-315.22 Pa. 35 A.2d 348 825, Emphasis 65, 67, added. A. Under 319 Pa. per Pennsylvania of accused law Maxey said Com 22. Hr. Justice Chief guilty plead degree to first son cannot Johnson, p. 353, v. Pa. at monwealth Berkenbush, Commonwealth v. murder. reversing this A.2d at 314: “We are 35 judgment 455, 461, 110 A. 265. See 267 Pa. parte not because ex § 4701: “In cases also pleas P.S.Pa. of court it de before received guilty, court, where it de sentence; we are revers termined the to be murder of termines crime ing the record does because * * * impose degree, shall sen parte affirmatively no ex not show acceptance Upon the court’s tence.” was received the court before evidence charged plea of the offense and declared the it determined ” indictment, i.e., murder, is immediate guilt murder. the defendant’s ly in the as murder second de established It is the settled law gree. If Commonwealth desires “Guilty” plea general th that a upon degree, the burden is raise the charge plea guilt e y murder is not a prove supplying degree. facts Commonwealth Common of murder in the first higher Jones, the elements essential Pa. de wealth v. 50 A. gree. supra. Iacobino, Jones, Commonwealth v. Commonwealth v. 2d impose judge sentence. It It is the law of that a was not the law—at Oyer sitting prior of the Court of Terminer least to the Ashe decision—that facts, jury, the trier of must of the vice doctrine Petrillo case could authorize- Three-Judge Oyer consider all the before he Terminer evidence Court -and guilt validity determine the or innocence of the de determine the defense of of a Barrish, insanity made in a fendant. v. an insane defendant 556; insane, If the- 146 A. Common murder case. Pa.Super. 529, 532, Oyer Richman, v. Court of and Terminer acted without wealth allegations authority 1 A.2d If of the sanction of or did true, process. the instant case be Court due accord Oyer observe and Terminer did not Judge Oyer Guerin of the principle fundamental insisted Terminer in testifying in the below Court Barrish Richman The law of cases. implied that there had been an understand respect. not unusual Court, ing between counsel and that a most, all, follows that of the It might time come when it would be advisable States, and of the United States. Town justice interests to cause Burke, supra. also such send cases “Guilty” to be Judge withdrawn. Guerin People Whitman, 149 Misc. 266 stated that such a time came. nev never Watts, 171 N.Y.S. State v. La. er because Three-Judge came Sample, 131 So. 203 La. and State v. Terminer, upon hearing the evi 841, 14 So.2d 678. The determination insanity dence as to Smith’s deter innocence, guilt or on the whether based sane, mined that he was not only the time report lunacy not, of a ab commission proceedings but also time at the of. solutely supra. Sample, void. State v. the commission of the doing crime. In this- Brooklyn The evidence contained in the Court relator found of first Hospital would have State records alone degree murder. jury question sufficient been to raise majority opinion of this as- because, gone to trial. This so tacitly procedural process, sumes due said, adjudicat- Smith had requires when prima there is a facie competent jurisdic- ed insane a court of present insanity, showing the accused is Terminer was tion. adjudication some entitled formal of his- apprised possibility that fully sanity, viz., present the accused has the- insane. That must also have *18 capacity to stand trial. Once this is as- of the fact if Smith was in- been aware that sumed, really the horns of a sane, plead competently guilty. he could not dilemma. If the Smith’s- necessarily involved a waiver of do so To by mental condition was received the Three- Pennsylvania by jury. re- The law of trial Judge Oyer only of Court Terminer quires jury a trial in murder cases unless purpose of alleged sentence as is in the- an insane man jury trial is waived. But petition fact, to have been the there could jury waive trial. the Court When cannot adjudication have been no of Smith’s ca- accepted Oyer Smith’s and Terminer of pacity follow, to stand trial. It would there- that Smith plea guilty and determined of fore, process. that was a denial there of due murder, guilty degree it de- of first insane, assume, if of his con- But if we prived majority, 'he was as do the that by jury. adjudication trial The there was fact a formal of' stitutional ability v. Pe- determine decision, Petrillo stand’ [Commonwealth 42-43,16 pp. guilt A.2d 50 at and his 33 at trial as well 340 Pa. as to determine- trillo] plea penalty, Court, a it is clear if there was that held that p. rather Three-Judge jury, a determined generally, than from evidence be- guilty degree fore it guilty could find that Smith was Oyer Terminer of murder in- jury degree. just intervention of and the first conclusion without éx- guilt proceed- Transcript 282-288, pp. Pennsylvania, for the Eastern District of ings Court District No. Misc. in the United if, here, assuming al- defense. But presumption most pressed is based on that namely legations petition true, there Commonwealth, favorable to the disease, grave are it indicia of mental that was found of first appears prepare as well that counsel If he was cannot February murder on properly his client’s the aid of case without September found psychiatrist, appointed by one must be petition asserts, de- fortiori law for the three process court if due is to be had. To re- Judges process nied due quire appointment Oyer of counsel for Terminer, con- Court indigent require appoint- accused is to cededly, of Smith’s did not the records law, ment of counsel a mem- any in- learned mental illnesses or other evidence requirement ber bar. The of due them on that on his behalf before troduced process, Alabama, as set out in Powell v. day “an feature” trial essential supra, appointment purview would not be met jury within Petrillo layman appointment of a p. 43, as counsel. The lacking. at 16 A.2d See 340 Pa. p. counsel for deaf at mute would con- process stitute due of law unless inter- point As (5) the last raised the re preter Nor, opin- also was available. in our petition, lator’s asserting that lack of due ion, appointment would the of counsel process because his counsel was not fur learned in requirement the law fulfill the psychiatric with nished assistance for the due required that counsel preparation case, of his as referred to in the psychiatrist assistance of pre- in order to eighth paragraph opinion, point of this pare an insane client’s defense. Supreme Court case, case, in the Ashe p. 364 Pa. at In the Ashe page 71 A.2d Pa. at p. page 116, at A.2d at indicated that there was no need supply psychiatric contrary view, assistance took the to Smith’s hold- ing counsel in order to in effect prepare enable him to the Commonwealth of stated, his defense. The Court is and can be under no obli- p. 105, gation 71 A.2d request psychiatric to furnish assistance to appointed made psychiatric Smith’s counsel for counsel capital as the court in a petition any however, indigent sistance. The case for alleges, defendant under * * * agreed being that “it According circumstances. under Penn allega- sylvania appointed law court tions of the it counsel could was because court- provided psychiatric appointed agreed not be examina with the Court of Oyer advice, tion and agreed psychiatric was further and Terminer that assist- ** * changed ance could not be afforded to counsel that guilty.” agreement Pennsyl point under (3), discussed say supra, judges vania went on to one was made. Counsel the Court testify correctly Terminer and Terminer stated the *19 Pennsylvania. ing during in the below law of court We conclude that if corpus proceeding (M. habeas 1334 circumstances such alleged No. in as those petition proved the United States District foe existed, Court for the have to de- prive psychiatric Pennsylvania) Eastern District of relator’s counsel of stated assist- psychiatrist deprive “If been for’ ance was in fact to ‘asked that relator of by defendant’s counsel the defendant counsel. could benefit of psychiatrist.” This was not have had a Pennsylvania progressed has of the Court of attitude and Terminer beyond far point where an indigent in- before it for trial. when Smith was capital defendant sane in a may case be tried every say capital in in do not that the Courts of the Commonwealth with- represent mentally has counsel to which the defendant out him. again See indigent appoint 22, 1907, court must Act of March ill and 19 P.S.Pa. § preparation Burke, of his Cf. Townsend v. aid in 334 ^psychiatrist 736, U.S. 68 12, paragraph 5, supra.

24. See set out note

560 1252, avail himself of it.25 A modern and Smith did not 92 L.Ed. 1690. exhaust S.Ct. conviction, his State following the in- remedies approach problem of realistic to the for at that time applica requires psychiatric assist- failed make defendant sane Supreme tion to the some Court of the ance for his counsel least under United States for a process Concepts following due writ certiorari circumstances. Supreme decision change progresses our and as civilization Penn sylvania appeal necessarily judgment from the of fundamental fairness ideas case, conviction.26 But -where as we have said Smith enlarge In Smith’s themselves. application did make insanity corpus complicated history for habeas most Supreme may presented, well relator’s adequate petitioned refused the writ.27 Smith then prepare have been at a loss early Court of the United States for psychiatric defense without assistance application certiorari. This was denied. demonstrated proceedings. in .the This is actually place. If facts what took validity We think that the of Smith’s con petition the in- be true alleged in may viction properly now be tested the relator be most favorable ferences corpus writ of habeas out of the issued court was over- evidence Smith from the taken below for presently he has exhausted his unintentionally, by the reached, however available remedies in the Pennsylvania. Commonwealth State courts.28 United States v. Cir., Jersey Pen., Warden of New 3 187 F. 615, Burford, 2d 618. See Darr five 339 foregoing is U.S. In conclusion 200, 587, 70 comparing S.Ct. 94 point L.Ed. of the case Section sues Mayo, Code, Wade v. provides 68 U.S. S.Ct. 2254, Title 28 United States parte Hawk, 92 L.Ed. corpus with Ex shall that the writ of habeas U.S. 572. In person custody of a State S.Ct. 88 L.Ed. granted to a People Illinois, Bute v. appears he has State of U.S. unless it exhaust court 640, 649, 763, 768, 68 S.Ct. 92 L.Ed. there is an remedies or that ed his State process Mr. Burton due process or the said that un of State corrective absence Justice “ * * * der the Amendment rendering Fourteenth of circumstances such existence proce process has reference to a any remedy or standard process If ineffective. may many processes cover varieties of law of the under the State dure available expressive differing are combinations prisoner custody State must of a garded interpreting provides as authoritative 28 U.S.C. 25. Section moaning application that, ha Code. United writ of “An for a Lines, City corpus person v. National 337 U.S. in cus of a beas bebalf 955, 93 tody pursuant S.Ct. L.Ed. 1226. of State ap granted Unless not be court shall of’ The decision applicant pears has exhausted appeal, have- on this as we in the courts available remedies reported stated, Pa. 66 A.2d State, an ab is either or that there Smith. proc corrective of available sence State ‘Supreme 27. The decision of ren of circumstances or the existence ess Pennsylvania denying writ, as we protect dering ineffective such said, reported 71 A. prisoner. rights of the 2d Commonwealth v. Ashe. applicant deemed to shall “An available in remedies have exhausted apply fact that Smith for man State, within the mean- compel the courts ing damus to Baldi to for- Dr. *20 section, the he has appointment of this of a ex the commission to raise, to law of the State Pennsyl under the amine into under the procedure, question pre- any available the Act, Mental vania Health 50 P.S.Pa. § suggested by sented.” Mr. Justice Chief Notes, U.S.C., Maxey Ashe, 28 state in Reviser’s Commonwealth 364 part, 93, 113, 117-119, pertinent “This new section is Pa. 119-120, A.2d in existing adequate declaratory of will him re affirmed not afford (See parte though might Ex lief avoid his imminent Court. the re-, Adequate Hawk, U.S. S.Ct. execution. relief for the novo, require 572.)” re- Notes are lator would trial de L.Ed. talk, he juridi little bit.” he did learn to modern, other When or local historical “he standards, stuttered. mother knew provided they do con His she cal not said funny age he was a child.” At the of nine principles lib flict with the ‘fundamental of erty justice stealing was sent to reform school for of all which lie at the base ” bicycle money. and, possibly, political He was found our civil and institutions.’ We juvenile delinquent. allegations be a After return are of the if the of reformatory true, ing was sent to a de from he are Smith has been public grade. school reached the sixth guaranteed nied law as him due record, age, At clear from he some the Fourteenth Amendment. We con marijuana. points smoking took to drink He expressly clude on the five raised age left school at the of sixteen en of the court be relator Army low re listed the United States.30 should reversed promoted sergeancy, He serving with the reinstate was direction to manded petition, appropriate theatre, hospitalized findings the “C.B.I.” but was to make eye, law, due to infection fact and conclusions deter later de veloping apparently gonor mine whether or Smith was overreached unconnected Pennsylvania. separate by the rheal infection. On three occa discharge between December sions aspects There are other and broader subject we note he case, pro- 32 the instant indeed all “Nervous Condition” or to “Nervous Con ceedings relating to which have not It fair ditions”. is a inference that specifically upon touched nervous condition conditions which af parties largely, for the in their able briefs precursors flicted Smith were believe, they because are sociomedical in schizophrenia him came soon aspects. appears their following from thereafter, if not itself. the disorder documentary evidence offered in the apparent diagnosis that the actual was not below and we believe that the ac- given.33 In within March nine months curacy regard of our statements in this can- discharge Army, from Smith stole seriously questioned. not be We have» re- an automobile in New York that he so could ferred to some evidence in some- Philadelphia.34 brought return to He general what terms. will endeavor now County Kings May before the Court on specific. to be more 1945, and was from Kings sent there t® the poverty was born and was blind Hospital. County There he was examined shortly Later, ed at or after birth. he was 8,1945, twenty-three days later, and on June cured. His father had an and mother un diagnosed schizophrenia, his disorder was happy frequently domestic life and were hebephrenic type. It was recommended separated. variously He lived with his hospital court that be committed mother, grandfather. his father and his He for the insane.35 Dr. Kings Adams difficulty learning speak and, ac Hospital reported: County opin “It is our cording to his “about mother five * * * ion presently insane, Smith is years you old when could understand him History Defendant, supra, Medical id. foregoing testimony 29. For see the pp. 166a-168a. Easton, relator, mother of Elsie Appeal Record vague phrases quoted 33. Contrast 196a-203a, Pennsylvania, pp. and the required employed definitions testimony Margaret Smith, the rela Army. See the the United War sister, pp. id. tor’s 204a-208a. Department Bulletin, Technical TB MED probably pp. 15, prescribing 30. 1941 is in detail June correct 3— though recording given. diagnoses. date several are id. method See 141a. Appeal the Record See Su- preme Pennsylvania, China-Burma-India. 130a. discharge id., pp. 77a-80a, 81a-94a, His “Other than Honor- *21 Army See the Fred able”. Statement S. Dr. Adams. U. On imbecile, capable December taken is of under Smith was .not and not request him, pro Hospital the Naval standing charge against the the Philadelphia policeman he against him, making his because ceedings de told a adju that he he kill Thereafter, making might was afraid someone. a formal fense.” County Hospital He Kings was sent from the Naval insanity, dication the of his Brooklyn Philadelphia Hospital. the A General note committed Smith to the Hospital. on admission record “he homi- That confirmed stated institution State discharged cidal”. He January the was on diagnosis schizophrenia the made at kept longer 1946 because Hospital he could be Kings County but concluded that days than ten on a The type. self-commitment. the catatonic it was of diagnosis discharge on Smith’s from the September 21, condition On Philadelphia Hospital General was “Acute hy the doctors considered staff Hallucinosis”, Alcoholic but value Hospital Brooklyn State since it diagnosis following is limited presented to the thought might he be qualifying Neuropsychiat- statement of the discharge. meet The record of staff Department Hospital: ric “How- ing three out on shows that held that date ever, Psychiatric the Chief [of Service] physicians who observed of the four possibility Epilepsy, mentioned Petit he were of should him * ** Psychomotor Equivalent. Mai or accurately pre be them released. Oné electroencephalograms, along felt that insight will un that “His lack of dicted with a background more detailed social his- because doubtedly difficulties lead to further tory, helpful would have been in establish- by being sick.” nothing he has learned ing diagnosis.” a more definite On this oc- physician only dissenting concluded attempt casion no was made to examine schizophrenic while Smith showed further, toor commit this man of pre-psychotic symptoms now at his he “is homicidal admitted tendencies. con staff level”. conclusion elapsed How much time “Patient is not well between Smith’s cerning Smith was: Discharge Philadelphia from dismissal called recovered. General enough Plospital later, days Eighteen on Octo commission his next deferred.” record, crime is not clear from however, Dr. Clarence H. hut ber Brooklyn February later, less than one month Bellinger, Director Senior according to suggestion and two Assistant Hospital, examined Smith State Attorney, District he was discharged him Island days Riker’s later caused County Penitentiary in New York. Here Testifying before the Court “Recovered”. year. confined Bellinger Assistant Dr. stated Terminer “ * * * Attorney suggested District also Smith to had found that he Philadelphia. later a car in understanding the stole capable of This sane record, appear not verified against him of con but does pending charges that was arrested on of his March making ferring with counsel * * * Philadelphia County later sentenced to the ”, that “He was clear defense term thirty-two days Prison for a of from do know what dis lucid.” charge twenty-two larceny months.38 Efforts to secure position was made County information to mental Kings Court after Smith was condition dur Brooklyn ing year he Hos discharged State Riker’s Island from County Prison were unsuccessful. pital. It does “Discussion”, Appeal heading Records ord on Court of See Brooklyn Hospital, Pennsylvania, pp. Record 94a-95a. State Appeal Penn Appeal See Record Su- partic pp. sylvania, 139a-140a. See in preme Pennsylvania, pp. 202a- of Dr. Terrence. statement ular the 203a. Bellinger, testimony Dr. Rec

563 áppear nights, hallucinatory made to as- his bed at not effort was person- voices signs the Phila- and the state numerous certain Smith’s mental at ality serving disintegration delphia symptomatic. are He County during Prison who long runs may how read.40 not know this sentence. do jail but we was in on this occasion symptoms Indeed Smith’s were almost December do know that he free Drayton, Jr., psy classical. Dr. William gun for he 1947 then stole chiatrist called on behalf of the Court summary he shot and killed Haines. The only psy and Terminer —indeed the periods during Was which the relator chiatrist who testified as condi to Smith’s supervision, restraint' under surveillance or tion after the commission crime for below, kind, of some out in the note as set which Smith sentenced death —con probability he in all will demonstrate that fifty’ ceded relapse occurred in about responsibility solely has his own percent schizophrenic of all cases. He any period longer nine months than stay stated: “I have seen them well for from the he was sixteen time when twenty years relapse I have seen them 26, joined Army United on June year.” Drayton within a Dr. was of the 1948, he killed January until when opinion mentally that Smith was ill at least Haines.39 was a Whether not Smith when he had himself to the Phil committed schizophrenic time committed the at he adelphia Hospital part General in the latter executed, crime for which is about December, 1945. The testified Doctor at there can be no doubt that showed response to a asked relator’s major one schizo- least characteristic counsel on respecting cross-examination adjust phrenic, complete inability him- acute alcoholic hallucinosis that: “This man requirements to the without self a life heavily drinking had been and he [Smith] 42,43 many oth- supervision. he has That shown a schizophrenic.” Drayton Dr. re scarcely can er similar characteristics least, iterated his woman who stood The headless mentally doubted. Smith was unsound but he had approximate Cameron, Psychology follows: calendar is as An “The of Be Houghton Disorders”, June havior Mifflin Com pany, pp. 494; 1944—Unit- June and Rich Overholser 446 — Army mond, Psychiatry”, ed States B. “Handbook J. Lippincott Company, 136-149; pp. March Oc- 9 months later Ebaugh Ewalt, Strecker, “Practical 1945— tober Psychiatry”, ed., County Kings Clinical 7th The Blak Brooklyn pp. Company, 265-296; Glueck, Hos- State iston pitals. Law”, “Mental Disorder Criminal Little, Company, pp. 354-382; Brown and December months later 2½ Jenkins, Schizophrenic January “Nature 4, 1946— Psy Process”, Neurology Archives Philadelphia General chiatry 243-262; Menninger, :64 Hospital “The Knopf, Mind”, pp. 93-107; Human Mac February 3, 1946 to month later “Psychoses Niven, Respon and Criminal February 3, 1947— sibility,” Abnormality Crime, Mental Island Coun- Biker’s Co., pp. Ltd., Macmillan and 8-71. Penitentiary. ty ? Appeal March later month See Record —Philadelphia Pennsylvania, p. Coun- 153a. ty Prison. p. 42. See id. at 150a. December 1947 —Stole killing gun Noyes, used Psychiatry”, “Modern Clinical ed., John J. Haines. Company, W. B. Saunders January points sug- 1948— that “There is much to gest J. Killed John the so-called ‘acute’ alcoholic has schizophrenic Haines. hallucinosis basis and purely psychosis.” alcoholic *23 say suggest proceeding not it was on that “completely” illness.44 from recovered that the sane because basis that the relator was position Drayton took the that Smith Dr. proving he burden of him had not met the he was exhibition- faking was an and that Actually, self to have be insane. we Drayton conclu- ist.45 Dr. also reached the shown, bargain into a the entered differ- Court sion was able to the that Smith tell pleaded with he Smith’s counsel which In this right wrong.” and ence “between guilty oppor generally for an in return Judges Court connection one of tunity procure to from New York the rec to Oyer Terminer attention and called room, relating ords mental illness. as to his But that Smith’s in court attitude “ * * * suming arguendo bargain no had been lips all that working and made, that no on the nature today he was not the case doing lost every arraignment step of his and tak court that days in the other two Smith was [that Oyer up en and Terminer to observation the Court This room]”. the time it received the Dr. objected by counsel.47 was to relator’s Drayton opinion procedurally correct did it, and we are We cite not because process, duty any involve denial of due what not was not that the Court under any, limitations, if im constitutional were for the the demeanor observe posed upon Oyer and true, the Court Terminer contrary but indicative that Drayton’s testimony? of Dr. insuf- nature itself, what we believe was Court on apparent largely upon It is that was Dr. evidence, expressed opinion it that ficient Drayton’s testimony Oyer the Court of faking ex- making an the relator was just Terminer that Smith was concluded in order avoid hibition of himself sane at time of the punishment. commission of the periods throughout crime when sug- foregoing we do mean By the not appeared Court, including the time when gest should be executed that Smith testified as a witness his own defense Haines if he at the the murder of was sane the time he was sentenced death. at crime, at the the commission time of stated, Pennsyl As have it is the law generally, guilty at time of his person vania be le that an insane cannot guilty of murder time he found gally Commonwealth v. tried or sentenced. present. degree first and at As to Ragone, pp. 124-126, supra, 317 Pa. at insanity on the two first men- occasions pp. A. believe at 459-460. We Oyer tioned, and Terminer the Court weight authority is in accord with express position an in no propositions just two which we stated. pertinent evidence to these had received underlying principle is if a An essential relator’s behalf before Smith on the issues proceeds inquiry as to whether pleaded guilty generally. As to third is sane or insane reaches accused viz., he was occasion, when found inquiry, it must so on do murder, prob- strong degree there probative sufficient data. shown, ability, we have the Court on If reached insufficient conclusion is Oyer received no Terminer had then probative ordinarily the is mere data result condi- the relator’s mental evidence as to distinguished error as from denial of a assumptions correct these tion. If we are right, en- constitutional but Smith’s case the and Terminer was the Court very larger trajecto much opinion that he this error embraces was sane titled to an at ry for mental condition went di Bear in mind that time. capacity plead rectly guilty gen proceeding was not Terminer power erally of the Court to find to the presumption that accused was sane until contrary. murder and proved did him of first he pp. See, example, Appeal id. at 164a-165a. 44. See Record Pennsylvania, p. at 108a. p. id., 47. See at 165a. 165a. id. doctor. He had no consultations insane If Smith sentence him to death. psychiatrist. opportunity He had further crime the commission of the the time of *24 condition while Smith to observe adjudicated guilty of Smith’s or at the times was attempted to testified or was in court and murder or was sentenced testify own behalf. on his death, Oyer did Court of and Terminer possess power proceed with his Weihofen, Insanity”, “Criminal 48 Mich adjudications which make and to Review, 961, p. 975, igan Law at states Supreme Court we have referred. The of psychiatrist who, after weeks months turn, assumptions .Pennsylvania in its upon to crime, is called determine correct, denied which have made be also we given “is the accused a Hercu condition of failing to as Smith due of law Strecker, lean Dr. Professor task”. rights. sure the relator an See his Medicine, University Psychiatry, School of Zerbst, alogy U.S. Johnson Pennsyl Pennsylvania, outstanding an 82 L.Ed. 1461. are of S.Ct. psychiatrist vania and associate of Dr. an on which the Court data Drayton, in the book “Practical Clinical proceeded and Terminer on and Psychiatry”, conjunction written in with which it its of execution rendered Ewalt, Ebaugh Drs. and a devoted that judgment was insufficient sustain and chapter Psychiatric Exam “Methods Com Smith was overreached suggests ination”. Dr. Strecker as neces respect. monwealth also in this Our rea sary psychiatrist em tools which should sons follow. ploy to determine the mental state of in Drayton only psychiatrist Dr. was the and examining, dividual whom he is the follow only physician indeed the who testified in ing complete, history, : A physi well-taken a as to and Terminer examination, examination, neurologic cal following mental the com Smith’s condition mental, examination of sensorium and in sen mission of the crime for he was resources; im tellectual he also stresses the tenced to death. But examination portance laboratory examination, exceedingly accused had been an limited amytal interviews, recommends a skill giving testimony, one. Prior to he had interpreted fully Rorschach test. Strecker examined Smith on two occasions further states that “There should be no hesi “about hour” in Phila cell at the Smith’s tancy calling adequate consultation delphia County on 3 and Prison November with all of the other fields of medicine.” eight a half months after about asserts, recovery Glueck rate “[T]he [in commission the crime. The examina schizophrenic extremely It low. cases] largely talking tion consisted [schizophrenia] may any lead to almost observing reading his demeanor his con conceivable crime.” Most of these exam him or not fession to discover whether inations prison cannot conducted cell distinguish he could between require hospitalization. but MacNiven Drayton wrong. Dr. also the advan states: “The illness [schizophrenia] is a tage concerning information Smith’s con very In majority serious one. cases given by guard dition him cell recovery many does occur and Philadelphia block County at the who Prison profound cases end in state of dement told him the relator’s behavior was says, ia.”50 outcome, Cameron “The Drayton [of normal.48 Dr. electro had no schizophrenic unfortunately, made, IQ, encephalograms illness] nor Ror nor justifies tests, gloomy laboratory some extent therapeutic nor schach tests of sort. 51 It prison He is also talked one occasion with the attitude.” well established that Abnormality Appeal 48. See See “Mental Record Crime (Psychoses Responsibili- Dr. Criminal pp. Drayton, Jr., ty)”, Co., Ltd., p, & William 145a-166a. Macmillan at Psychology Glueck, Disorder “Mental 51. See “The Behavior Dis- Houghton Law”, Brown, orders”, Little, Company and Com- Criminal Mifflin pany, p. 354. Neg fact, however, It is the unfortunate among schizophrenia the incidence justification some for less high is to found over three times roes52 native a complete diagnosis than parentage, accused’s persons native white condition, insanity, mental rate.53 2.1 times rural urban is and the States, in- decisional law of most of the fact that slum demonstrable is also a cluding Pennsylvania. that of Glueck has metropolitan cities have sev areas our said: to name the out- hospitalized “If were many schizo asked eral times standing law of insan- population as characteristic of the patients phrenic in relátion ity, as found in the in the various In view cases areas.54 have the better residential *25 reports, if it be the fact that State an- foregoing unhesitatingly and we of all the would prolonged Drayton employed swer, more no Dr. of the States Most —confusion.” ap diagnosis than searching methods of make legal irresponsibility the sole test of record, it be said that pears from the can ability of the accused to tell the differ- adequate an one? examination was Smith right ence wrong. between and A few present are forced to record we On the right States have wrong added to the and psy by the that his examination conclusion impulse” test the so-called “irresistible test appointed by was insuf chiatrist viz., that the accused committed crim- adequate probative data.55 supply ficient to inal act impulse because 'an irresistible killed life. He was on trial for his Smith A overwhelmed will. few more peculiarly brutal circum under Haines foregoing States add a “delusion”' properly penalty the death stances and instance, test. For is so de- if accused Al imposed upon was not insane. him if he suppose luded killing supposed as to however, defense leged insanity, was his attacker, may not found if his he does against and he was insane death if delusions had been fact ‘and as such would penalty nor could it law merit the death not have sustained a self defense.57 fully imposed him. have been very reality That these tests are far from owed it Commonwealth cannot, think, successfully disputed. employ the defendant ade itself and to Certainly, many competent medicolegal quate psychiatric methods to ascertain writers have so indicated and in our We are forced to mental condition. they proved their case. See for ex- Common reluctant conclusion ample Weihofen, “Insanity as a Defense in. met this test. wealth has not youk mental condition as “What Negro. 52. is a Smith replied, found it at time?” He Biological “Normal, insane; Malzberg, occasion to have- 53. “Social See Disease”, Aspects Hos- Mm.” State further observation On- of Mental pitals cross-examination he stated that he ex- Press. altogether or talked with amined Dunham, half, “Mental Dis- Faris and 54. See hour about “an and a because he- ** University Areas”, p. of Chi- in Urban order a normal case Id. cago Press. 341. asked, p. 339, Dr. Baldi was id. at “Are- Compare examination Dr. Baldi’s you principles use determin- respecting his attitude ing a man’s the same as those- Ms examina Baldi stated Dr. case. “By by psychiatrists?” replied, He used Welsh, Judge United tion before psychiatrists.” sane District Eastern District 1834, pp. Pennsylvania, at Misc. No. “Mental Disorder and the Criminal 319-821, second on October Little, Company, Law”, Brown and corpus proceeding hereinbefore re habeas day he [Smith] to: “The ferred Cases, Digest Weihofen, “Insan him I made examination of 57. See came Law”, ity a Defense Criminal should be sent to a decided he Fund, York, pp. put hospital New 109— but in a cell as an mental asked, ordinary prisoner.” He Law”, Chapter 1, concep year Criminal Section “What case. From this hundred old MacNiven, Wrong Law?”58, tion, unchanged by with the passage of-time or “Psychoses Responsibility,” science, and Criminal grew “right advance of Abnormality wrong” test; i.e., Editorial Note to “Mental legal doctrine that Crime”,59 “Mind, Zilboorg, Medicine accused -be found murder Man”, chapter entitled, “Crime and his state of mind was he could such that Judgment”.60 very large part A con tell the wrong. difference between invariably plagues Pennsyl fusion which almost in the This doctrine results the law of alleged trial of the criminal defendant to be vania as it does that of most of the other insane, Case, M’Naghten’s lies the fact that the law insists States. like Mosler’s “ * * * psychiatrist case, that the deal with mental states assumes the existence aof logic-tight compartment and conditions which do not exist save as in which the delu legal conceptions. sion sway leaving holds the balance of the * * * ”; mind intact the criminal re many In as in of the other enough logic tains tight compartment *26 difficulty States this arises lit because so that sanctuary from of reason opinion eral adherence to the Lords may inform himself as to what the other Case, M’Naghten’s in Daniel 8 House of part mind, part, the insane has com 718, 200 (8 English Reports Lords X Clark pelled permitted body or to do. If the Finnelly 198), and decided in 1843. Mr. portion sane of the accused’s mind knows charge Chief Gibson’s in Common Justice compels per that what the part insane Mosler, wealth 264, v. 4 Pa. was drawn and body body mits the wrong, to do is must M’Naghten’s This, based think, Case. we by way suffer for it of electrocution or must be M’Naghten’s conceded.61 Case hanging, obliterating good both the and the gave sanctity legal theory “par portions, bad as well as the residence of delusion”, phrase tial occurring again again both. is no answer under the law of throughout opinion. It was employed principle by part 'also as a fundamental to assert that insane Mr. Chief Gibson in the Mosler of portion the mind overcame the sane Justice supra. authority 57, Hallowell, 1909, 494, cited in note v. 223 Pa. A. 72 DeMarzo, 1909, v. 845: Commonwealth Abnormality Crime”, 59. “Mental Mac- 573, 893; Pa. 72 A. 223 Commonwealth Ltd., Co., pp. respectively millan and 8- Snyder, 1909, 526, 910; v. Pa. 224 A. 73 71, pp. particular, pp. 66-70 viii- Pacito, 1911, Commonwealth v. 229 Pa. xxiv. 328, 828; A. 78 Commonwealth v. Cal Zilboorg, “Mind, 60. See Medicine houn, 1913, 472; 474, 238 Pa. 86 A. Com Man”, Harcourt, Company, pp. Brace Cavalier, 1925, 311, monwealth v. 284 Pa. 249-297. 229; 131 A. Commonwealth v. Schroe der, 1931, 1, 835; 302 Pa. 152 A. Com following Pennsylvania 61. See the cases 1931, Szachewicz, monwealth v. 303 represent which we believe the law 410, 483; Pa. 154 A. Commonwealth today: it is Common 1899, 155, Hollinger, v. 190 Pa. 42 A. Farkin, 1844, Pars.Sel.Eq.Cas. wealth v. 2 548; 1899, Heidler, v. Commonwealth 439; Freeth, 1858, Commonwealth v. 3 375, 211; A. 191 Pa. 43 Common 105, 400; Am.L.Reg. 6 Ortwein v. Phila. Werling, 1894, 559, wealth v. 164 Pa. Sayres Commonwealth, 414; Pa. 76 406; Sherer, A. Commonwealth v. Commonwealth, 1874, 291; Pa. v. Nev 867; 109 A. Pa. Jones v. 322; ling Commonwealth, 98 Pa. v. Commonwealth, 1874, 75 Pa. 403. All Commonwealth, Coyle v. Pa. cases are cited in these Weihofen’s 573; Taylor Commonwealth, 1885, v. “Insanity Law”, as a Defense Criminal 271; Hillman, Commonwealth v. Pa. pp. 57, supra. See note 137-139. 196; Pa. 42 A. Common Wireback, 1899, phrase Glueck’s, wealth Pa. is 62. The “Mental Disor- 542; Lewis, 1908, Law”, pp. Commonwealth 42 A. and the der Criminal 169- 18; supra. 222 Pa. 71 A. 170. See note insanity. “ir The rule of body acted under an therefore the criminal M’Naghten’s impulse”63 the crime Case created decision. to commit resistible Perhaps impulse no defense in much to think that it too because irresistible may not, Pennsylvania. If Commonwealth v. altered the same means. legislation prevail. Perhaps then Schroeder, 1, 152 must 1931,302 A. 835. M’Naghten -mind, entity. however, It can rule be modified a Penn- human sylvania sane, Smith’s, part this, parts, Court in case. not be broken into one law, it re part when other insane. making In this statement we are not un- psychiatrist quires to 'state whether aware the delicate which must- balance capable of know the accused is be maintained between the and the psychia compels ing right wrong, from Federal Government and the reluctance by concept guilt or innocence trist test 'should and must shown a fed- reality. recognizable which has almost no eral interfering court in with the consid- advisedly for it We use the word “almost” judgments ered Nor State tribunals. do- drooling, quaking, is conceivable that the appreciate fail judge the fact that quality whatsoever imbecile has mind suggests or member of the bar who mod- not know and therefore would not could wrong. between difference ification of the criminal law as it relates to unlikely an individual would Such insanity is, course, matter as a accused since the commission commit crime being upon the side of the criminal or of body activity of mind crime and some possessing a mawkish attitude. We think inseparable. seem Scotch, however, *27 that the are not a mawkish may race; Pennsylvania yet law of law never it- The state of the burdened Scotch Dray- why Dr. have constituted the reason M’Naghten’s self with the rule of Case. The ton, testifying behalf of called and irresponsibility test of Scottish was ex- Court, repeated made references to Smith’s Inglis 1863,. pressed by Lord Justice-Clerk wrong, and it knowledge and strictly sense, legal “In a as follows: there Drayton why Dr. as supply the answer insanity is no insane criminal. Concede and use modern apparently made but small homicidal is not criminal. The act act largely tests, restricting himself psychiatric insane, which in the sane would be questions and asking Smith method of criminal, every element of crime.” lacks Drayton had If Dr. his answers. receiving substantially rule remains the- Scotch hereinbe- examinations made the tests today. “in- same is true word have been data would to, the referred fore precise term but the meaning sane” not question answering the value of little despite rule is clear this. We- of the Scotch Terminer was why legal ir- reason test of can see no pose: Did Smith did pose and sure of a responsibility for the commission crime right and difference between know the principle be based should not compelling the an- wrong? The illness accused is mental adhering to the swer contributory cause of the- proximate, or a a hundred of over crime, may not be then accused found standing. years finding, With this as an guilty murder. corollary, go would the commit- inevitable Changes can be always so. It need an accused under- brought to the ment can reason effected quoted MacNiven, “Mental Ab impulse” As doctrine “irresistible Chapter normality Crime”, II, illogical us to be seems defense “Psychoses Responsibility”,. wrong” and Criminal “right for it would test Ltd., Co., any impulse Macmillan which is re seem irresistible. definition sisted Mental Health Act of are that the judgment amended, appropriate to an insti- below should be reversed tution. that the cause should be remanded.