Before McLAUGHLIN, HASTIE and FORMAN, Circuit Judges.
This is an appeal by Alfred W. Drew from the denial of his petition for a writ of habeas corpus by the United States District Court for the Eastern District of Pennsylvania*fn1 The following pertinent facts and circumstances are gleaned from a stipulation*fn2 filed in the District Court by counsel for Drew and the Commonwealth of Pennsylvania.
On January 29, 1958, Drew was arrested in Philadelphia for the illegal possession and sale of narcotics on September 5, 1957. He was indicted therefor on February 11, 1958, in the Philadelphia Court of Common Pleas.
On February 15, 1958, Drew retained counsel, who unsuccessfully attempted to contact Thomas Sherwood, an alleged alibi witness. He would establish, purportedly, that Drew was in New York on the date of the crime.
On February 15, 1958, Drew's counsel received notice that the trial was set for Wednesday, March 5, 1958. Before the selection of the jury on that date, Drew's attorney moved for a continuance on the ground that he lacked adequate time to prepare his case. He further advised the Trial Court that Drew's defense would be alibi, but that his attempts to contact Sherwood, as yet, had been unsuccessful.
The Trial Court denied the motion for a continuance, stating: "Well, I think you have had sufficient time to work it out and will refuse your motion."
Prior to the taking of testimony, on March 6, 1958, counsel for Drew requested the prosecution to divulge the identity of any eyewitnesses to the alleged crime not indorsed on the bill of indictment. The Commonwealth stated that there were no witnesses other than those listed on the bill of indictment*fn3
The Commonwealth's first witness was an undercover agent and police officer, named Harold Carter. He testified that on September 5, 1957, he and Irving Carter*fn4 were walking together in the vicinity of Broad and South Streets in Philadelphia, when they saw Drew. Irving, according to Harold, then left him to speak to Drew, after which, Irving returned to converse with Harold. Then, allegedly, Harold approached Drew from whom he purchased narcotics. The purchase occurred about ten feet from where Irving stood. Harold stated that he rejoined Irving after the transaction and together they left the scene*fn5
Following this testimony, Drew's counsel moved for a continuance for the purpose of having the Commonwealth produce Irving Carter or to permit counsel to produce him. Drew's counsel asserted that this was the first time the defense had ever heard of Irving. The Trial Court refused the motion. Counsel later renewed the motion, and again it was refused.
As the trial began on Wednesday, Drew's counsel contacted Dale Wright in New York City, asking him to locate Sherwood. On Friday, Mr. Wright advised counsel "that the address given to him was incorrect" but that he would continue with his attempt to locate Sherwood over the weekend. Mr. Wright testified at the habeas corpus proceeding in the District Court that he located Sherwood on Monday, March 10, the last day of the trial.
At 11:15 a.m., of that Monday, counsel for Drew stated to the Trial Court that he had just received word from New York City that Sherwood had been located but was reluctant to go to Philadelphia. He expressed the thought, however, that the "witness might be in by 2:00 o'clock." The trial judge then stated: "If he is here by 2:00 we will take his testimony, otherwise there will be no more witnesses."
After the noon recess, counsel again made a motion for continuance to obtain the testimony of Sherwood. To demonstrate the "bona fides" of the motion, Drew claims, counsel then introduced a statement of a "telephone message" from Mr. Wright, signed by counsel's secretary. It read:
"Thomas Sherwood, the witness, can be reached at University 4-1952 or University 4-9649 before 12:30 P.M.; he is a porter in Leo's restaurant at 2077 7th Avenue. He will be reluctant to come over to Philadelphia to testify on the stand because he is an ex-con and in domestic trouble with his wife. He does know that Alvin Drew was in New York from September ...