Appeal, No. 17, Oct. T., 1956, from order of Court of Common Pleas No. 6 of Philadelphia County, June T., 1955, No. 4525, in case of Commonwealth ex rel. William Henderson v. Fred Kruger, Warden, Holmesburg Prison. Order affirmed.
Leon Rosenfield, with him John Patrick Walsh, for appellant.
Victor Wright, Assistant District Attorney, with him Francis A. Biunno, Assistant District Attorney, and Samuel Dash, District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.
[ 180 Pa. Super. Page 375]
This is an appeal from the order of the Court of Common Pleas No. 6 of Philadelphia County discharging a rule to show cause why a writ of habeas corpus should not be granted to William Henderson, the relator, and dismissing his petition after an answer had been filed and a hearing held thereon.
The facts are stipulated as follows: William Henderson, Thomas Marney and Eugene Miller were indicted jointly on one bill, No. 585 August Sessions, 1954, charging Assault and Battery and Aggravated Assault and Battery. The case was listed for trial on December 13, 1954 before the Honorable JOSEPH L. KUN. At the outset of the trial a colloquy took place as follows: "MR. ROBBINS: If your Honor pleases, I represent two of the defendants Miller and Marnie, and I
[ 180 Pa. Super. Page 376]
am ready to present a waiver to the Court, if this is satisfactory. THE COURT: All right. The third defendant is Henderson. MR. ROBBINS: That's right, sir. THE COURT: You don't represent him. MR. ROBBINS: No. BY THE COURT: (to defendant Henderson) Q. Henderson, you are not represented by counsel? A. No, your Honor. Q. The other two defendants, Marnie and Miller, have waived a jury trial and want the Judge to hear it without a jury; are you satisfied to have the case disposed of in the same manner? A. Yes, sir. Q. Well, sign a waiver. (The defendant having been arraigned pleads not guilty and waives a jury trial)."
The three defendants were thereupon tried. Immediately after the testimony was closed, the trial judge sentenced appellant as follows: "With respect to Henderson the sentence of the Court is to serve from 18 months to 3 years in the County Prison at the end of any sentences he is now serving."
The basic question presented in this appeal can be stated as follows: Must a defendant be represented by counsel in order to waive a jury trial under the Act of June 11, 1935, P.L. 319, as amended by ...