Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.
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Frank Townsend was indicted on June 1, 1945, on four bills of indictment; two of the bills, Nos. 699, 701,
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May Sessions, 1945, charged burglary; two of the bills, Nos. 696, 698, May Sessions, 1945, charged armed robbery. Townsend was arrested on June 3, 1945, and on the following day he signed a written confession. On June 5, 1945, without the benefit of counsel, Townsend entered a plea of guilty to each bill of indictment. A sentence for a term of not less than 10 years nor more than 20 years in the Eastern State Penitentiary was imposed on bill No. 698. Reference to such sentence was noted on the other bills.
After serving a portion of his sentence, Townsend filed in the Supreme Court of Pennsylvania a petition for a writ of habeas corpus in which he alleged that his pleas of guilty were obtained without due process of law, and that he was unlawfully restrained of his liberty as a result of the sentence imposed upon him. The Supreme Court of Pennsylvania refused to grant the writ. A petition to the Supreme Court of the United States for a writ of certiorari was granted; and that court after argument reversed the action of the Supreme Court of Pennsylvania, Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690. The reason for the reversal was that the trial judge imposed sentence, in the absence of counsel, under an obvious mistake as to the prisoner's prior criminal record. The order appended to the opinion of the Supreme Court of the United States consisted of but one word -- 'Reversed.' However, the mandate formally communicating to the Supreme Court of Pennsylvania the action of the Supreme Court of the United States contained an order which 'reversed with costs' the judgment of the Supreme Court of Pennsylvania, and directed that the cause be remanded to the latter court 'for proceedings not inconsistent with the opinion' of the Supreme Court of the United States. Com. ex rel. Townsend v. Burke, 361 Pa. 35, 38, 63 A.2d 77. There being some question as to the extent of the relief to be afforded
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Townsend, under the opinion of the Supreme Court of the United States, counsel were appointed to represent him, and the matter was argued before the Supreme Court of Pennsylvania. Thereafter the Supreme Court of Pennsylvania, in its opinion in Com. ex rel. Townsend v. Burke, 361 Pa. 35, 38, 63 A.2d 77, 78 stated: 'We are now unanimously of the opinion that the decision of the Supreme Court means, and was intended to mean, that the conduct of the trial judge in connection with his sentencing of the defendant, Townsend, constituted error of such a fundamentally harmful nature (considering the uncounseled position of the defendant) as to stigmatize the proceeding as lacking constitutional due process throughout and render it vitiated ab initio.' Accordingly, the Supreme Court of Pennsylvania revoked its order denying Townsend's petition for writ of habeas corpus, and directed the proceedings had in the Court of Oyer and Terminer of Philadelphia County on June 5, 1945, be vacated and set aside, including his pleas and sentence.
On September 26, 1949, Townsend was again called to answer the bill of indictment at No. 698, May Sessions, 1945, charging armed robbery. At this time Townsend was represented by counsel appointed by the trial court. He first entered a plea of not guilty to the said bill of indictment, but was permitted at the trial on October 20, 1949, to withdraw such plea and enter a plea of autrefois convict. This was traversed by the Commonwealth. Townsend's counsel then asked the trial court to consider him as standing mute, whereupon the court directed a plea of not guilty to be entered. Prior to the close of the Commonwealth's case, the traverse was withdrawn and a demurrer entered by the Commonwealth to the plea of autrefois convict. The trial judge ruled as a matter of law that the plea of autrefois convict could not be sustained, and instructed the jury to bring in a general verdict of guilty
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or not guilty. The jury returned a verdict of guilty on the bill of indictment before it. After the trial court denied motions in arrest of judgment and for a new trial, Townsend was sentenced to a term of not less than 7 years nor more than 15 years in the Eastern State Penitentiary, the same to date from the time of his original commitment under the former invalid sentence. This appeal is from the judgment and sentence imposed.
Appellant claims that the trial judge erred in instructing the jury to bring in a general verdict of guilty or not guilty, and in failing to submit to the jury the issue raised by his plea of autrefois convict. Admittedly, it was held in Solliday v. Commonwealth, 28 Pa. 13, cited and relied upon by appellant, that, where defendant pleads autrefois convict and also not guilty, and the Commonwealth joins issue on both pleas, a general verdict of guilty, without any findings by the jury on the plea of autrefois convict, cannot stand. But in the present case the Commonwealth was permitted to withdraw its traverse of appellant's plea of autrefois convict and to enter a demurrer thereto. By his instructions to the jury the trial judge effectually sustained the Commonwealth's demurrer to the plea of autrefois convict, and refused to submit any issue on that plea to the jury. We think this was entirely proper. The question raised by the Commonwealth's demurrer to appellant's plea of autrefois convict was one of law, and there was no issue of fact arising under this plea to be submitted to the jury. When the trial judge ruled as a matter of law on appellant's plea of autrefois ...