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UNITED STATES EX REL. HERGE v. PENNSYLVANIA

March 17, 1950

UNITED STATES ex rel. HERGE
v.
COMMONWEALTH of PENNSYLVANIA et al.



The opinion of the court was delivered by: GOURLEY

This is a habeas corpus proceeding by the United States of America on relation of Irvin C. Herge against Stanley P. Ashe, Warden, Western State Penitentiary.

Before the petitioner instituted the habeas corpus proceeding in this court, he had filed application for writ of habeas corpus in the Supreme Court of Pennsylvania.

 Irvin C. Herge, the petitioner, entered a plea of guilty to an indictment returned at No. 59 March Term 1946, Court of Quarter Sessions, certified to 1 March Term, 1946 in the Court of Oyer and Terminer of Lawrence County, Pennsylvania, in which he was charged with the murder of Jean Fatur at Elwood City, Pennsylvania, on October 17, 1945. Evidence was presented, as provided by the Act of June 24, 1939, P.L. 872, 18 Purdon's Pennsylvania Statutes Annotated, ยง 4701. After the taking of extensive testimony offered by both the Commonwealth and the petitioner, the trial judge adjudicated the petitioner guilty of murder in the first degree and determined the penalty to be life imprisonment. On April 22, 1946, the trial court sentenced the petitioner to the Western State Penitentiary for and during the term of his natural life.

 The facts and circumstances which surround the commission of the crime are most gruesome and brutal. On October 17, 1945, the date of the killing, Jean Fatur, the victim who had been acquainted with Herge for some period of time, went to see him at his home about 11:00 o'clock in the morning. The girl was pregnant and during the visit, Herge became enraged at her, brutally struck and mistreated her, and as a result thereof she died. He placed the body of the dead girl in the trunk compartment of his car. When the girl was missed by her family, the defendant through various means endeavored to avert suspicion. On October 22, 1945, the defendant left the community where he lived and went to Ohio. During the period from October 17, 1945 to October 28, 1945, he kept the body in the trunk compartment of his car. He threw the body into a river southwest of Toledo, Ohio, where it was found by fishermen. Through a description of the teeth of the girl, her identity was ascertained. The circumstances which surrounded the crime were such in the opinion of the trial judge that the death penalty would have been imposed if the mental capabilities of the petitioner had been normal.

 Petitioner contends that he was denied rights given to him under the Constitution of the United States in the following particulars:

 1. That he was denied the right of trial by jury in that he never knowingly waived this right.

 2. He did not enter a plea of guilty.

 3. He was mentally incompetent to understand the nature of his acts-

 (a) At the time of the commission of the crime, and

 (b) At the time the alleged plea of guilty was purported to have been made.

 4. That under the law of Pennsylvania, where a plea of guilty is entered to a murder charge, it is necessary that more than one judge sit to determine the degree of guilt and that since one judge sat in the instant case, the imprisonment of the petitioner is in violation of the Constitution of the United States.

 5. That the Courts of Lawrence County, Pennsylvania, did not have jurisdiction for the reason that the crime did not occur in said county.

 The respondent contends:

 1. That the petitioner did not exhaust his remedies under state law, and this court, therefore, has no jurisdiction.

 2. That the petitioner was not denied any rights given him under the Constitution of the United States.

 In passing upon the application for writ of habeas corpus in this court, judicial knowledge will be taken of all records and proceedings in the Courts of Quarter Sessions and Oyer and Terminer of Lawrence County, Pennsylvania, and the Supreme Court of the Commonwealth of Pennsylvania. Said records have been made part of the record in this proceeding and are marked as exhibits:

 (1) Commonwealth's Exhibit No. 1- Records at No. 59 March Term, 1946 Court of Quarter Session, certified to No. 1 March Term, 1946, Court of Oyer and Terminer.

 (2) Commonwealth's Exhibit No. 2- Opinion and order of trial judge.

 (3) Commonwealth's Exhibit No. 3- Photostatic copy of indictment included in Commonwealth's Exhibit No. 1.

 (4) Commonwealth's Exhibit No. 4- Transcript of testimony and exhibits.

 (5) Commonwealth's Exhibit No. 5- Original indictment and related papers.

 (6) Commonwealth's Exhibit No. 6- Opinion and order of court.

 (7) Commonwealth's Exhibit No. 7- Sentence imposed by the court.

 (8) Petitioner's Exhibit 'A'- Certification of petition for writ of habeas corpus filed in the Supreme Court of Pennsylvania, refused by per curiam opinion on September 26, 1949.

 Has the petitioner exhausted the remedies existing under state law?

 The writ of habeas corpus filed in the Supreme Court of Pennsylvania was refused with per curiam order and without opinion. In reviewing said application for writ of habeas corpus, it is not possible to determine from a reading of the petition whether the petitioner was basing his writ on a state or federal question. The problem of determining whether the disposition of the petition by the Supreme Court was based on a federal or state question becomes difficult.

 It is a question for the determination of the federal court, from an examination of the complete record, as to whether the refusal of the writ by the Supreme Court of Pennsylvania rested on a substantial and adequate state ground. Honeyman v. Hanan, 300 U.S. 14, 18, 57 S. Ct. ...


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