Appeal, No. 318, Jan. T., 1962, from order of Court of Quarter Sessions of Philadelphia County, May T., 1958, No. 780, in case of Commonwealth v. Harold Johnson. Order affirmed.
Paul Leo McSorley, with him John E. Walsh, Jr., for appellant.
James L. Stern, Deputy City Solicitor, with him David Berger, City Solicitor, for City of Philadelphia, appellee.
Martin Vinikoor, Secretary, William J. Woolston, Vice-Chairman, and Paul M. Chalfin, Chairman, for Philadelphia Bar Association Committee on Criminal Justice and Law Enforcement, as amicus curiae.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.
OPINION BY MR. CHIEF JUSTICE BELL
The appellants are counsel who were appointed by the Court of Oyer and Terminer of Philadelphia County to represent Johnson, an indigent defendant indicted for murder.
Johnson was indicted for murder in May, 1958. After presentation to that Court of his affidavit that he was destitute of means to employ counsel and prepare for his defense, the Judge sitting in the Court of Oyer and Terminer to whom the affidavit was presented, appointed the appellants to represent Johnson. Appellants' services included the following:
Appellants prepared Johnson's case and tried it in May, 1959, the trial commencing May 7 and ending May 15. The jury found Johnson guilty of murder in the first degree and fixed the penalty at life imprisonment. On June 10, 1959 the trial Judge entered an Order directing the payment of a $500 counsel fee to each of these appellants. This was the maximum counsel fee allowable. Thereafter, appellants prepared and
argued motions for arrest of judgment and for a new trial. These motions were dismissed by the Court en banc on June 28, 1960, at which time sentence was imposed upon Johnson in accordance with the verdict of the jury.
Appellants (representing Johnson) thereafter appealed to this Court which, on January 19, 1961, ordered a new trial: Commonwealth v. Johnson, 402 Pa. 479, 167 A.2d 511.
Johnson was retried on September 18, 1961 and these appellants again prepared his case. Johnson pleaded not guilty, but after four jurors had been selected, changed his plea to guilty. After hearing testimony Judge CARROLL, the trial Judge, found defendant guilty of murder in the second degree.
Thereafter, on September 25, 1961, these appellants filed another petition requesting payment of an additional counsel fee of $500 to each of them for services rendered to Johnson in connection with his new trial. On March 19, 1962, Judge CARROLL dismissed the petition; this appeal followed.
There is not the slightest doubt that the fee of $500 for all the services rendered by each counsel was very inadequate if payable by a person of means, but it must be recalled that these services must be paid for by the County - in this case, the City - and the Court's power to fix compensation in this case is authorized and limited by the Act of March 22, 1907, as amended by the Act of April 6, 1949, P.L. 406, and as further amended by the Act of November 10, 1959, P.L. 1401.*fn1
Prior to March 22, 1907, while counsel for indigent persons accused of murder was often appointed by a Court, such counsel served without compensation and had no constitutional or statutory or common law
right to compensation out of the County or State treasury. Such counsel served gratuitously because motivated by human sympathy and an appropriate sense of professional obligation. It took a statute to change the common law in this respect so as to compel the County to pay the compensation and any expenses of counsel for an indigent person accused of murder: Wayne County v. Waller, 90 Pa. 99;*fn2 Commonwealth v. Thompson, 367 Pa. 102, 79 A.2d 401.
The law prior to 1907 was well summarized in the syllabus of Wayne County v. Waller, supra: "1. Where counsel are assigned by a court to defend a pauper criminal, the county wherein the trial is had is not bound to pay their fees, nor even the expenses incurred in the preparation and course of the trial. One of the incidents of the office of counsel, who is an officer of the court, is to defend such prisoners gratuitously."
This Court said in Commonwealth v. Thompson, 367 Pa., supra (page 106): "The constitutional right of the accused to be represented by counsel gives him the right to choose, at his own cost and expense, any lawyer that he may desire. When, however, he is unable to do so or is destitute or without means to employ counsel of his own choosing, the court will appoint
counsel for him whose statutory*fn3 compensation and personal expenses are payable by the county. The custom of the court to assign counsel in capital cases is an ancient one and was provided for by the law of this State long before the adoption of its present Constitution or of the 14th Amendment to the Federal Constitution: See Act of May 31, 1718, 1 Sm.L. 105, § 4, 19 P.S. § 783; and see the late Chief Justice MAXEY'S opinion in Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, at page 45, 24 A.2d 1, and footnotes thereto. In those early days it was deemed a proud service of the bar to accept such assignments as counsel from the court without compensation. It was not until 1907 that compensation and certain expenses were provided for: Act of March 22, 1907, ... The amount of compensation then fixed has been substantially increased by the more recent Act of April 6, 1949, ..."
The Act of March 22, 1907, as amended by the Act of April 6, 1949 provides that when a person indicted for murder shall file an affidavit setting forth that he is "wholly destitute of means to employ counsel and prepare for his ... defense, the judge sitting in the court of oyer and terminer, to whom such affidavit is presented, shall assign to such person counsel, not exceeding two, to represent and defend such person at the trial of the case; and when services are rendered by counsel, in pursuance of such assignment, the judge sitting at the trial of the case may allow such counsel all personal and incidental expenses ... and also reasonable compensation for services rendered, not exceeding five hundred dollars for each counsel; which allowance of expenses and compensation shall be a charge upon the county in which the indictment in the action is found, ... upon the certificate of the judge presiding at the trial of the case. ..." This compensation
is payable by the County provided counsel file an affidavit that he has not directly or indirectly received nor entered into a contract to ...