Edward J. Gibbs, in pro. per.
Basil C. Clare, Asst. Dist. Atty., C. William Kraft, Jr., Dist. Atty., both of Media, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, and Arnold, JJ.
[ 167 Pa. Super. Page 81]
Appellant, Edward J. Gibbs, was indicted on September 16, 1947 (No. 417, September Sessions, 1947) in the Court of Quarter Sessions of Delaware County, having been charged with larceny of certain clothing and personal property belonging to James Blades. The indictment contained two counts, (1) larceny, and (2) receiving stolen goods. Appellant pleaded not guilty. At the trial before a jury appellant was not represented by counsel but acted as his own attorney. The jury found him guilty, and he was sentenced to a term of two and one-half to five years in the Eastern State Penitentiary. On May 24, 1948, he filed a petition for writ of habeas corpus in the Supreme Court of Pennsylvania. In his petition he alleged that he had been denied counsel, and that his trial, conviction, and sentence were in violation of his rights under the Constitution of the United States. The rule to show cause which had been issued was discharged, and the writ was denied by the Supreme Court of Pennsylvania on July 68 1948. On September 17, 1948, appellant petitioned the Supreme Court of the United States for a writ of certiorari which was granted. After argument, the Supreme Court of the United States, on June 27, 1949, in its opinion in Gibbs v. Burke, 337 U.S. 773, 69 S.Ct 1247, 1251, 93 L.Ed. 1686, held that appellant had been handicapped by lack of counsel to such an extent that his constitutional right to a fair trial was denied. The order of the Supreme Court of the United States in this case was: 'Reversed and remanded for proceedings
[ 167 Pa. Super. Page 82]
not inconsistent with this opinion.' The Supreme Court of Pennsylvania accordingly made the following order: 'August 10, 1948, in obedience to the Mandate of the Supreme Court of the United States (opinion rendered June 27, 1949), the order of this Court heretofore entered on July 6, 1948, denying relator's petition for a writ of habeas corpus is hereby revoked, and the Court of Quarter Sessions of Delaware County is directed to vacate and set aside the plea entered and the sentence imposed on September 30, 1947, in respect to the relator, on indictment No. 417, September Sessions, 1947, of that Court. The Court below will then proceed according to law.' The Court of Quarter Sessions of Delaware County entered an order vacating and setting aside the plea entered and the sentence imposed. Thereupon appellant was released from the custody of the warden of the penitentiary and was returned to Delaware County to stand trial upon the open indictment (No. 417, September Sessions, 1947). Appellant was represented at the trial by counsel appointed by the court. Appellant again entered a plea of not guilty, and was tried before a judge and jury. The Commonwealth's evidence consisted of that of the prosecutor, James Blades, whose clothing and property were allegedly stolen by appellant; Mrs. Lafield, the prosecutor's mother; Constable Fleming, the arresting officer; the Chief of Police of Marcus Hook; and James Silverstein, operator of a pawn shop. Appellant testified in his own behalf. His defense was that the articles were not stolen but were in appellant's possession pursuant to an agreement with the prosecutor to sell them for the benefit of the prosecutor. Appellant was again found guilty by the jury, and received the same sentence which had previously been imposed -- two and one-half years to five years in the Eastern State Penitentiary. This sentence was to commence from the date of the original commitment
[ 167 Pa. Super. Page 83]
on July 17, 1947. On his appeal to this Court appellant has acted as his own counsel and has filed typewritten briefs. Appellant was permitted to use the original record. The case was submitted without oral argument.
Appellant's first contention is that his second trial on the original indictment, after his release on habeas corpus, placed him in double jeopardy in violation of rights guaranteed by the Fifth Amendment to the Constitution of the United States. The provision in the Fifth Amendment prohibiting double jeopardy is a limitation on the powers of the Federal Government and is not a limitation upon the states. Com. v. Simpson, 310 Pa. 380, 388, 165 A. 498; Com. ex rel. Garland v. Ashe, 344 Pa. 407, 408, 26 A.2d 190. In passing upon a similar contention we said, in Com. v. Townsend, Pa. Super., 74 A.2d 746: 'However, even under the Fifth Amendment where a petitioner's trial, conviction, and sentence are declared a nullity and set aside in habeas corpus proceeding for lack of due process of law, as where the right to counsel has been denied, upon his release from the original sentence, the petitioner is subject to arrest and prosecution and may be delivered to the proper officers to answer the charges contained in the original indictment still outstanding, and a trial and conviction thereon do not place defendant in double jeopardy [Federal cases cited].' Appellant entered a plea of not guilty; and neither a claim of former jeopardy nor former conviction was made in the court below. The plea of former jeopardy under Article I, section 10, of the Constitution of Pennsylvania, P.S., is available to a defendant in a capital case only. Com. v. Simpson, supra, 310 Pa. 380, 165 A. 498; Com. v. Beiderman, 109 Pa. Super. 70, 73, 165 A. 765. Where a defendant does not at his trial enter a plea of autrefois convict the right to take advantage of such plea
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may be regarded as waived. Com. v. Balles, 163 Pa. Super. 467, 473, 62 A.2d 91. Appellant's assertion in his brief that he raised this question in the court below is not supported by the record. In any event, under an assentially similar situation in Com. v. Townsend, Pa. Super., ...