Opinion
January 20, 1942.
Commonwealth ex rel. McGlinn v. Smith, Warden, 344 Pa. 41, held controlling.
Petition for writ of habeas corpus. Original jurisdiction, No. 462 Misc. Docket No. 7, in case of Commonwealth ex rel. Alfred Maurice v. Herbert A. Smith, Warden, State Penitentiary. Writ refused.
This is a petition for a writ of habeas corpus. The petitioner seeks his release from imprisonment under a sentence of five years minimum and ten years maximum in the Eastern Penitentiary. He was convicted on two charges of "breaking and entering with intent to commit larceny". He has on two occasions filed in the Superior Court of Pennsylvania petitions for writs of habeas corpus to release him from the above named imprisonment. On the second application the Superior Court took the testimony of the trial judge, the assistant district attorney who acted at the trial, the public defender, the lawyer who was retained by the relator within two weeks after the trial, and the relator.
The Superior Court in discharging the writ said: "We find that the allegations of the relator as to his having been denied the right to counsel and refused a continuance of his trial in order that he might employ counsel and subpœna witnesses in his behalf are not sustained. On the contrary, we find that he knew from his contact with the Public Defender, before the trial, of his right to be represented by counsel on the trial; that he did not ask for a continuance of the case; that he was asked by the assistant district attorney and the trial judge if he had counsel to represent him, and that he replied that he did not."
We agree with what the Superior Court said and with its decision. What we have set forth in our opinion this day filed in the case of Commonwealth ex rel. McGlinn v. Smith, Warden, 344 Pa. 41, about the writ of habeas corpus not serving as a substitute for an appeal in criminal cases and about failure to provide counsel when none is asked for is applicable to and rules this case also.
The writ is refused.