went off. The bullet struck the driver in the side and penetrated his chest. He died a few hours later.
'In sentencing appellant, the court below observed, 'His youth is the only thing that moved this Court against the supreme penalty. This crime was inexcusable, wilful, and it took out of our community a young citizen in the prime of his life. If it were not for his age the sentence which we are about to pronounce would be much more [severe].' In doing so, the sentencing court afforded appellant every benefit and advantage that could reasonably be expected from the sole mitigating circumstance. * * *'
On November 21, 1952 he was adjudged guilty of murder in the first degree, and the sentence of life imprisonment was imposed. No appeal was taken from this judgment of sentence.
During this same evening of October 15, 1951 there were at least ten to twelve boys in the police station, as well as parents of many of the boys. They were sitting in the outer room, and two of these were Mr. and Mrs. Wills, parents of the relator. The father is now deceased.
Mrs. Walls testified that after their arrival at the police station, they phoned Mr. Levinson, an attorney, and that he refused to come to the police station. The relator testified before me that he asked for counsel, namely, Mr. Levinson. So it is certain that the police permitted and knew of the call to Mr. Levinson, and that this was during the investigating proceedings which concerned not only the relator but all of the ten to twelve boys who were suspects.
Two of the police officers testified that at no time did Walls request that he be given counsel, and I find this as a fact. Further, it was testified that Walls was advised by said officers of his rights not to sign a confession and that there were no threats.
It is certainly beyond my imagination that in a small police station crowded with people, with one person after another being interrogated by two or three policemen, not continuously for hours, as alleged, for it takes time to talk to ten or twelve boys, that the interrogation was continuous and that relator was put in fear, but I am sure that the propelling reason for his admission was the knowledge of the signed statements by Sampson and Miller. The police were so busy with each boy, one after another, ten to twelve of them, that surely no one could have prevented a parent or parents from calling and procuring counsel.
It is to be noted that relator at that time, at the age of sixteen years, was a huge boy, weighed 202 pounds, and was in the National Guard. Further, we should point out that counsel at the time of trial before the court en banc did not raise any questions relative to the voluntary nature of appellant's confession.
So I find, in view of all the circumstances, that Walls was given the right to have counsel but, for whatever reason, the attorney called on the phone by relator's parents did not choose to come to the police station.
The police were carrying out an investigation which began with the finding of a 25 caliber revolver. Ten to twelve subjects were rounded up and taken to the police station late in the evening. The process of elimination began. The parents were summoned or came voluntarily. Apparently William Sampson and Marshall Miller implicated Walls. To me, this is routine and excellent police work and nowhere do I find a denial of relator's constitutional rights by having the police refuse to honor his request to consult with his or an attorney during the course of the interrogation. Gideon v. Wainwright, 372 U.S. 335, 342, 83 S. Ct. 792, 9 L. Ed. 2d 799. There was no request for an attorney, except for Mr. Levinson, who was called from the police station.
To be ruled by the case of Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977, the suspect in police custody must be denied the right to consult with counsel, and must be denied the assistance of counsel. I find no such denial for relator. The facts in Escobedo show that Escobedo repeated his requests for counsel, that he had a lawyer, but that client and lawyer were afforded no opportunity to consult before his statement was taken. Further, during that trial the lawyer moved to suppress the incriminating statement of the defendant (Escobedo) but the motions were denied. In the instate case, in further contrast, counsel at no time during the trial raised the question as to the confession.
In still further contrast to the instant case, it is to be noted that at the time of trial the relator testified in far greater detail than appeared in the statement which he had signed. This he did on the advice of counsel. It was not necessary for counsel for the Commonwealth to use the confession of the relator because the plea of guilty in open court dispensed with the proof of the crime. Townsend v. Burke, 334 U.S. 736, 68 S. Ct. 1252, 92 L. Ed. 1690. There is no allegation in petition, or testimony of relator, that the confession induced his plea.
Accordingly, the conclusion is reached that counsel for the relator evaluated the trial tactical situation of his client charged with murder. He chose not to contest the confession. The client plead guilty to murder with the hope of leniency in the heart of the court. I think it fair and reasonable to assume that counsel balanced his youth, his prior good record, and that he was in the National Guard and privileged to wear the uniform of his country during the Asiatic crisis, against the facts of killing during an attempt to commit a felony. To show that nothing was to be hidden from the court, Walls testified in detail. Counsel wanted to move the court against imposing the supreme penalty. Walls was successful for the penalty was fixed at life imprisonment.
In view of the above, the writ of habeas corpus is denied.