jurisdiction so that the convicted person thereafter, whenever he sees fit, can launch a collateral attack upon a judgment, valid upon its face.
Mere errors or irregularities in a judgment or proceeding of a court under and by virtue of which a person is imprisoned, which are not of such a character as to render the proceeding void, cannot be raised on an application for a writ of habeas corpus. Graham v. Squier, Warden, 9 Cir., 132 F.2d 681, certiorari denied 318 U.S. 777, 63 S. Ct. 830, 87 L. Ed. 1145; Price v. Johnston, supra.
The petitioner's argument relative to the prejudice which it is claimed exists as a result of the search and seizure of his garages, without a search warrant having previously been issued, should be evaluated by reference being had to the existing law in the Commonwealth of Pennsylvania.
P.S. Pa. Const. Art. I, Sec. 8, provides that 'The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.' (Italics supplied)
Under the provisions of the state constitution, although the members of the state police were not acting under legal authority, and the searches and seizures were without warrant, the petitioner would not have been entitled to have the evidence suppressed at the trial. The admissibility of the evidence of the seized property is not affected by any illegality of the means through which it was obtained. Admissibility of the evidence must be found on grounds other than the means by which it was procured. No constitutional barrier exists in the Commonwealth of Pennsylvania to the offering of evidence against one charged with crime although it has been obtained as a result of an unlawful search and seizure. Commonwealth v. Dugan et al., 143 Pa.Super, 383, 18 A.2d 84.
Where a search warrant is illegally issued in the Commonwealth of Pennsylvania, or if the officer exceeded his authority, although the officer might be liable for the wrong done, if the evidence is pertinent to the issue, it does not justify the exclusion. Commonwealth v. Rubin, 82 Pa.Super. 315, 327; Commonwealth v. Dugan, supra.
The admissibility in evidence against persons charged with crime in the Commonwealth of Pennsylvania is not affected by the fact that the property was obtained by the police authorities as the result of an unlawful search and seizure. Article I, Section 8, of the Constitution does not forbid searches and seizures without a warrant, but is directed only against unreasonable searches and seizures. Commonwealth v. Dugan, supra.
The admission of evidence seized without a search warrant by state officers and admitted as evidence in a state court trial does not violate 'due process of law clause' in the Fourteenth Amendment to the Constitution of the United States. The Fourth and Fifth Amendments to the Constitution of the United States have reference to powers exercised by the government of the United States and not to those of the states. Commonwealth v. Dabbierio, 290 Pa. 174, 178, 138 A. 679; Commonwealth v. Dugan, supra; McIntyre v. State, 190 Ga. 872, 11 S.E.2d 5, 134 A.L.R. 813, certiorari denied 312 U.S. 695, 61 S. Ct. 732, 85 L. Ed. 1130.
It has been consistently recognized that the federal government may avail itself of evidence obtained by state officers even though such evidence may be obtained by unlawful search and seizure. A distinction has been drawn between the limitations of the Fourth Amendment in its different spheres of operation on the federal government and the states. The right of the federal government to avail itself of evidence improperly seized by state officers operating entirely upon their own account is not questioned by the Supreme Court of the United States. Byars v. United States, 273 U.S. 28, 33, 47 S. Ct. 248, 71 L. Ed. 520; Gambino v. United States, 275 U.S. 310, 48 S. Ct. 137, 72 L. Ed. 293, 52 A.L.R. 1381; Feldman v. United States, 322 U.S. 487, 492, 65 S. Ct. 26, 89 L. Ed. 646; Screws v. United States, 325 U.S. 91, 144, 65 S. Ct. 1031, 89 L. Ed. 1495, 162 A.L.R. 1330.
I, therefore, do not believe that the admission in evidence of the articles, records, or data secured by the members of the Pennsylvania State Police, through the alleged unlawful search and seizure, amounts to a denial of any rights given by the provisions of either the Constitution of the United States or the Constitution of the Commonwealth of Pennsylvania. The evidence, unquestionably, was relevant and material to the issues and was properly identified.
Question III -- Is there a denial of the rights set forth by the Fourteenth Amendment of the Constitution where a conviction is based on disputed questions of fact?
Petitioner contends that the motor vehicle set forth in indictment at No. 21/152 September Term, 1946, was not at anytime before or after trial, conviction and sentence reported to have been stolen property. Petitioner contradicts this statement in the last paragraph, page 9 of his petition and brief, wherein he sets forth the following:
'Permit the petitioner to call to the attention of the Honorable Court that the automobile in question involved at case No 21/152 was alleged by the owner to have been stolen in Cleveland, Ohio.'
Further, during the trial of the case under Indictment No. 21/152 , after the owner of the automobile testified that it had been stolen from a parking lot on April 19, 1946, on page five of the testimony the following questions and answers appear:
'Q. Well, did you report this incident to the police? A. Yes, sir.
'Q. Right away? A. Yes, sir.
'Q. Did you give the police a description of your car and so on? A. Yes, sir.
The question raised has no basic reason or foundation, and where disputed questions of fact exist in the trial of a criminal proceeding, a conviction based thereon does not constitute a denial of the protection of the Fourteenth Amendment.
Question IV -- Where the subject of a crime passes through more than one jurisdiction or state, is there a denial of the protection of the Sixth Amendment to the Constitution where a prosecution is lodged in the jurisdiction where the defendant took part in the commission of a crime?
Petitioner's argument is predicated upon the assumption that since the cars were stolen in states outside the Commonwealth of Pennsylvania and either returned to the owners or found outside Fayette County, Pennsylvania, no basis exists to support a conviction in Fayette County, Pennsylvania.
There was ample evidence both direct and circumstantial to show that the motor vehicles in question were at one time or another under the control and in possession of petitioner in Fayette County, Pennsylvania, and the question of being prosecuted there by the Commonwealth of Pennsylvania raises no serious problem at this time. Juries passed on the question and found him guilty. Venue is an element to be established by evidence at the trial of a case. The question of the locus of a crime involves consideration of the evidence. It is a question for determination by the trial court and jury and cannot be reviewed on habeas corpus. Rodman v. Pothier, 264 U.S. 399, 44 S. Ct. 360, 68 L. Ed. 759; Vigoretti v. Hill, D.C., 18 F.Supp. 337, affirmed 3 Cir., 107 F.2d 1023.
There is ample evidence in the record to support the guilt of petitioner. There was no denial of any rights given by the Sixth Amendment to the Constitution.
Furthermore, the Sixth Amendment of the National Constitution applies only to trials in federal courts. The due process clause of the Fourteenth Amendment does not incorporate, as such, the specific guarantees found in the Sixth Amendment although a denial by a state of rights or privileges specifically embodied in that and others of the first eight Amendments may, in certain circumstances, or in connection with other elements, operate in a given case, to deprive a litigant of due process of law in violation of the Fourteenth Amendment. Due process of law is secured against invasion by the federal government by the Fifth Amendment, and is safeguarded against state action in identical words by the Fourteenth Amendment. The court, therefore, believes that petitioner has not been deprived of any rights. Betts v. Brady, 316 U.S. 455, 461, 62 S. Ct. 1252, 86 L. Ed. 1595.
Question V -- Does a denial of the rights set forth in the Sixth Amendment to the Constitution arise where a conviction is based on evidence from which inferences and deductions point to the guilt of the accused?
As previously stated, the Sixth Amendment applies only to trials in federal court. Betts v. Brady, supra.
Regardless of this rule, the reasonable inferences and deductions arising from the testimony point to the guilt of the petitioner.
The petitioner has not been denied any rights given by the Sixth Amendment to the Constitution.
Question VI -- Is there a denial of rights given by the Sixth and Eighth Amendments to the Constitution where numerous charges are placed against an accused, and as a result thereof, he is unable to secure bail?
As to petitioner's right to bail, he was granted one delay in his trial and was released on reduced bail approximately ten days before his trial. Generally, habeas corpus is not designed for collateral review of matters such as existence of any evidence to support conviction, irregularities in grand jury procedure, departure from statutory grant of time in which to prepare for trial, and other nonjurisdictional errors in trial procedure. See Sunal v. Large, Conn. & W. Va., 1947, 332 U.S. 174, 67 S. Ct. 1588, 91 L. Ed. 1982.
Alleged irregularities and improprieties in arrest and treatment of accused prior to trial and in procurement of evidence against him must be urged by way of defense on trial and by appeal, and do not constitute grounds for release by habeas corpus. Young v. Sanford, 5 Cir., 147 F.2d 1007.
There was no denial of any rights given by the Sixth and Eighth Amendments to the Constitution due to the several arrests of the petitioner and the setting of bail in connection with which the petitioner could not comply.
Question VII -- Is there a denial of rights given by the Fifth and Sixth Amendments to the Constitution where the indictments are returned by the grand jury on the evidence, alone, of the prosecuting officer who it is contended gave heresay, presumptious, biased and prejudiced testimony?
Petitioner attacks the indictments under which he was trial in that they were based on heresay, biased and prejudicial testimony. On habeas corpus the court will not examine the information or indictment further than to see that it affords a jurisdictional basis for the conviction. The sufficiency of the indictments is a question for the state courts. Hawk v. Hollowell, D.C., 1 F.Supp. 885; Ex parte Webb, 225 U.S. 663, 32 S. Ct. 769, 56 L. Ed. 1248; Knewel v. Egan, 268 U.S. 442, 45 S. Ct. 522, 69 L. Ed. 1036; United States v. Pridgeon, 153 U.S. 48, 14 S. Ct. 746, 38 L. Ed. 631.
I do not believe the petitioner has been denied any protection afforded by the Fifth or Sixth Amendments to the Constitution.
Question VIII -- (a) Did the Court at the time sentence was imposed alter or modify the penalty as provided in the Acts of Assembly under which the petitioner was tried?
Where a prisoner, seeking discharge on habeas corpus, shows in his petition that his imprisonment is by virtue of a judgment of a court, competent to try the offenses for which he is imprisoned on conviction of such offenses, he must, to entitle him to his discharge, show the nullity of such judgment, or that he has served the sentence. In re Greenwald, C.C., 77 F. 590.
Even if sentences imposed upon petitioner were greater than the law permitted, district court, which had not imposed them, could not, upon petition for habeas corpus, order their correction. Terrell v. Biddle, 8 Cir., 1943, 139 F.2d 32, certiorari denied Terrell v. Pescor, 321 U.S. 794, 64 S. Ct. 785, 88 L. Ed. 1083, rehearing denied 322 U.S. 767, 64 S. Ct. 941, 88 L. Ed. 1593; Holiday v. Johnston, 313 U.S. 342, 349, 61 S. Ct. 1015, 85 L. Ed. 1392.
The sentences imposed by the court were in accordance with existing law in the Commonwealth of Pennsylvania.
Question VIII -- (b) Is there a denial of due process under the Constitution where the petitioner, after conviction, was sentenced by the trial court without the presence of his counsel, although request was made for counsel to be present?
Petitioner was represented by counsel throughout his trial. However, he now claims that insofar as his counsel was not present when he was sentenced, that this constitutes error. The various courts have gone as far as holding that there is no absolute requirement that a defendant be even represented by counsel and the mere fact that an accused was not represented by counsel is not in itself, alone, a sufficient basis for granting a writ. Dorsey v. Gill, supra; Betts v. Brady, supra. Petitioner further charges neglect and indifference on the part of his counsel. Mere general assertions of incompetency or disinterest do not constitute a prima facie showing required by statute to support a petitioner for habeas corpus. Dorsey v. Gill, supra.
At the time sentences were imposed, the Court afforded the petitioner an opportunity to be heard. The absence of petitioner's counsel caused him no prejudice or denial of constitutional rights. This is not such an extreme case which amounts to a denial of fair trial so as to justify release of petitioner. Diggs v. Welch, 80 U.S.App.D.C. 5, 148 F.2d 667.
I do not believe the sentences were imposed in violation of the provisions of the Acts of Assembly in the Commonwealth of Pennsylvania, and there has been no denial of rights provided by any terms of the Constitution.
The petitioner generally complains of two other matters in his petition which should be considered in order that a determination can be made of all questions which have been presented.
He sets forth that he was summoned to trial December 10, 1946 at Case No. 21/152 , and before the jury returned its verdict he was ordered to trial on Case No. 25/156 , and that jurors which sat through the entire case of the first trial were called to sit on his second trial. No motion for a continuance was made in behalf of the petitioner; the granting or refusing such motion based on objections to the jury is largely discretionary with the trial court. Further, an objection that the jurors have heard the evidence in a previous case against accused, or in a similar case involving the same evidence or witnesses, does not necessarily constitute sufficient ground for a continuance. 22 C.J.S., Criminal Law, § 500.
Although many of the jurors in the panel may have heard the evidence in the previous trial, there is nothing in the record to establish any prejudice against the petitioner. Commonwealth v. Celli, 153 Pa.Super. 88, 33 A.2d 97; Commonwealth v. Spallone, 154 Pa.Super, 282, 35 A.2d 727.
Petitioner claims that he should have been tried in the United States Court under the National Stolen Property Act, 18 U.S.C.A. § 413 (now § 2314). The Court is of the opinion that petitioner is referring to the National Motor Vehicle Theft Act, 18 U.S.C.A. § 408, (now Secs. 2311-2313), the last sentence of which provides 'Any person violating this section may be punished in any district in or through which such motor vehicle has been transported or removed by such offender.'
Although the petitioner could have been prosecuted under the federal law, this does not bar the state from prosecuting an offender where he has violated a state law.
Also, in Petitioner's trial at No. 13/109 September Term, 1946, no testimony was taken. Therefore, since the court has not been furnished with a transcript of the record, it is unable to determine whether petitioner was denied procedural due process in this trial. See Dorsey v. Gill, supra.
The petitioner sets forth the names of certain witnesses he wishes to have subpoened. He states that three of these will testify as to the illegal search without a warrant of his home, garage and other building rented by him. What has been said heretofore relative to search without a warrant is applicable in connection herewith and nothing can be gained by calling such witnesses. Petitioner wishes to subpoena another witness who will testify that the 1942 Dodge Sedan was inspected by his garage and an official inspection sticker was affixed thereon and that no number alterations appeared thereon. This testimony was brought out in petitioner's trial. Since petitioner's counsel delved into this subject at the time of trial, it is apparent that he could have inquired further if he saw fit to do so. Petitioner also wishes to call a witness who will testify that an official inspection sticker was affixed by his garage to the 1942 Pontiac in question, and that no number alterations, motor or serial, appeared thereon. If petitioner is referring to the official sticker being altered, there is no evidence in the case concerning this sticker. If he is questioning the alteration on the motor, this should have been done during the trial. The last witness that petitioner wishes to call is one who will attempt to show the court's lack of jurisdiction. The question of jurisdiction has also been discussed elsewhere in this opinion, and the witness could not by any testimony alter petitioner's present position.
In my opinion, this is not one of the rare cases where exceptional circumstances of peculiar urgency are shown to exist such as would require the federal courts to interfere with the administration of justice in the state courts, and discharge the petitioner through a habeas corpus proceeding. Ex parte Hawk, 321 U.S. 114, 64 S. Ct. 448, 88 L. Ed. 572.
The petitioner's application for leave to file in forma pauperis a petition for writ of habeas corpus is allowed. However, it is ordered that the petition for a writ of habeas corpus and the petition to subpoena witnesses is hereby denied since it appears from the application that the petitioner is not entitled to the issuance of the writ. 28 U.S.C.A. § 2243.