(dissenting).
The examination of the case starts with the astonishing circumstance that the appellant, who applies for a writ of habeas corpus, has been imprisoned for sixteen years in the Virginia State penitentiary as the result of invalid convictions in violation of his rights under the Federal Constitution. Obviously it is our duty to release the prisoner from this illegal detention at the earliest possible moment and to remand him to the Virginia authorities for a new trial in accordance with law.
The court, however, has decided to dismiss the application for the writ and to remit the prisoner to the state courts for such relief as they may see fit to give him. This action is taken although the prisoner has already applied to the state trial court and to the Supreme Court of Appeals of the state, and has been denied relief without opinion by either tribunal. The prisoner has also applied to the Supreme Court of the United States for writ of certiorari to the Virginia court, but has been denied a hearing. This latter action, however, throws no light on the controversy for the Supreme Court has often said that a denial of certiorari by it imports no expression of opinion upon the merits of a case. For example, it used this language in House v. Mayo, 324 U.S. 42, 48, 65 S.Ct. 517, 89 L.Ed. 739, in respect to a denial of certiorari in a habeas corpus case.
The court in the pending proceeding evidently indulges the hope that the Virginia courts will change their attitude, when and if the case goes back to them; and the court prefers this procedure because of the respect we entertain for the Virginia courts and because it was held in House v. Mayo, 324 U.S. 42, 48, 65 S.Ct. 517, 89 L.Ed. 739, and White v. Ragen, 324 U.S. 760, 764, 765, 65 S.Ct. 978, 89 L.Ed. 1348,. that where a state court has considered the merits of a prisoner’s contention upon a writ of habeas corpus, and the Supreme Court of the United States has declined to review the state court’s decision, a federal court will not ordinarily or usually re-examine the question thus adjudged.
On this line of argument the crucial inquiry is whether or not the circumstances-surrounding this case may be characterized as unusual or extraordinary. It is submitted that only one answer can be given, to this inquiry, and that, in the affirmative.. Indeed the court itself seems to entertain, this view, for otherwise it would simply affirm the judgment below and would not venture to suggest that the state courts re-examine the merits of a case on which, they have already passed.
But let the facts speak for themselves;, and there will be general agreement that the procedure at the trial of the prisoner-in 1931 in.the state court was extraordinary and unusual. In that year, the prisoner was a youth of twenty years, who had served two years and nine months in the Coast Artillery of the United States Army.. *503He had had an education as far as the seventh grade but had had no practical experience except that in the army. He had had no past criminal record and no contact with courts of justice. On October 5, 1931, he had been on a three-day leave and he and a comrade in arms were traveling in an automobile at night on the road near Yorktown on their way to Richmond, when they were arrested by state officers who searched them, handcuffed them and found a gun in the car. They were taken to a police station in Newport News and charged with armed robbery in four cases. Under Section 4405 of the Virginia Code this offense carries a punishment of death, or confinement in the penitentiary for life, or any term not less than eight years.
At the police station the boys were separated, and shortly thereafter the appellant’s companion confessed. The testimony of the appellant at the habeas corpus hearing below was that he denied guilt of the charges at the station house but was told by the arresting officers that he would get “the chair” if he did not confess; and under this pressure he signed a written confession prepared for him. The officers denied that any threats were made and testified that both boys confessed voluntarily that they had held up attendants in gasoline stations and had committed the robberies in order to obtain money to meet payments which were due on an automobile that they had purchased. The next morning the defendants were taken before the police magistrate and pleaded guilty to the charges. It is conceded that at no time after the arrest did the defendants have counsel or any friend to advise them ; nor were they told that they were entitled to counsel nor was any counsel offered to them.
There were in all four indictments for the robberies of four individuals, two of which occurred in September, one in August and one in October, 1931. The indictments charged that the boys succeeded in obtaining small amounts of money, ranging from six to sixty-five dollars in each case. Three indictments were found on the 10th day of November, 1931, in . the Corporation Court for the City of Newport News, and one indictment in the Circuit Court of Warwick County on the 16th day of November, 1931. No witnesses to the crime were examined by the Grand Jury, but the indictments were found upon the testimony of the police officers as to the confessions. On November 16, 1931, the defendants pleaded guilty to one indictment in the Circuit Court of Warwick County and were sentenced to eight years in the penitentiary. On the 17th day of November the defendants pleaded guilty to the three indictments in the Corporation Court for the City of Newport News and were sentenced to twenty years on each of two cases, and ten years on the third case, these sentences to be consecutive and to begin at the expiration of the eight-year sentence previously imposed in Warwick County. No witnesses to the crimes were produced in any of these proceedings, the sentences being pronounced upon the testimony of the officers as to the confessions. The defendants did not have the benefit of counsel, and they were not advised as to their rights in the premises, although the right to counsel is recognized in Virginia as a fundamental one under the state Bill of Rights, Watkins v. Commonwealth, 174 Va. 518, 6 S.E.2d 670.
We are concerned at this time only with the cumulative sentences of fifty years, since the eight-years’ sentence has been served. There can be no doubt that the imposition of this lifetime imprisonment upon a young and ignorant youth, without the advice of counsel or the assistance of friends, and without advice or instruction from the judges who imposed the sentences, or from any one else, was a flagrant violation of the prisoner’s constitutional right. Equally true is it, and fortunately so, that in the administration of criminal justice in this country this trial was a rare and unusual occurrence. The law on the subject has been made clear by decisions of our highest court. See Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; Tompkins v. State of Missouri, 323 U.S. 485, 65 S.Ct. 370, 89 L.Ed. 407; Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. *5041367; Canizio v. People of State of New York, 327 U.S. 82, 66 S.Ct. 452, 90 L.Ed. 545; De Meerleer v. People of State of Michigan, 329 U.S. 663, 67 S.Ct. 596; Foster v. People of State of Illinois, 67 S.Ct. 1716.
In Williams v. Kaiser, supra, the court considered the application for relief on habeas corpus of a prisoner who, without the advice of counsel, pleaded guilty to a charge of robbery by means of a deadly weapon. Speaking of the distinction between the degrees of robbery and the degrees of larceny, the court said (323 U.S. at pages 474, 475, 476, 65 S.Ct. at page 366, 89 L.Ed. 398):
“ * * * These involve technical requirements of the indictment or information, the kind of evidence required for conviction, the instructions necessary to define the several elements of the crime, and the various defenses which are available. These are a closed book to the average layman. These considerations underscore what was said in Powell v. [State of] Alabama, supra, 287 U.S. [45], at page 69, 53 S.Ct. [55] at page 64, 77 L.Ed. 158, 84 A.L.R. 527: ‘Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself- whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.’ Those observations are as pertinent in connection with the accused’s plea as they are in the conduct of a trial. The decision to plead guilty is a decision to allow a judgment of conviction to be entered without a hearing —a decision which is irrevocable and which forecloses any possibility of establishing innocence. If we assume that petitioner committed a crime, we cannot know the degree of prejudice which the denial of counsel caused. See Glasser v. United States, 315 U.S. 60, 75, 76, 62 S.Ct. 457, 467, 468, 86 L.Ed. 680. Only counsel could discern from the facts whether a plea of not guilty to the offense charged or a plea of guilty to a lesser offense would be appropriate. A layman is usually no match for the skilled prosecutor whom he confronts in the court room. He needs the aid of counsel lest he be the victim of overzealous prosecutors, of the law’s complexity, or of his own ignorance or bewilderment.”
In De Meerleer v. People of State of Michigan, supra, where there was a plea of guilty to the crime of murder, the court said (329 U.S. at page 665, 67 S.Ct. at page 597):
“Here a seventeen year old defendant confronted by a serious and complicated criminal - charge, was hurried through unfamiliar legal proceedings without a word! being said in his defense. At no time-was assistance of counsel offered or mentioned to him, nor was he apprised of the consequences of his plea. Under the holdings of this Court, petitioner was deprived of rights, essential to a fair hearing under-the Federal Constitution.”
It has been suggested, and it is doubtless true, that these decisions gave the-profession a clearer conception than it had: previously possessed of the rule as to a defendant’s right to counsel in a criminal, case. Certain it is that in many cases a. plea of guilty was thought to involve that, “intelligent waiver” of the right to counsel which was recognized in Johnson v.. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L. Ed. 1461, 146 A.L.R. 357, as consistent with the constitutional requirement. This, view was not unnatural, for the courts, knew that in the vast majority of cases no-injustice had been inflicted upon defendants who pleaded guilty without the advice-of an attorney, and there was the fear,, which has been justified by subsequent. *505events, that the discussion of the matter would bring forth large numbers of applications for writs of habeas corpus for which no justification existed.
However this may be, the view was not held by all the courts, as is shown by the thoughtful discussion of Judge Stephens in Evans v. Rives, 75 U.S.App.D.C. 242, 130 F.2d 633. There has been in fact no change in the law since the hearing of the habeas corpus case in the Virginia courts, but merely an application of the rule to varying circumstances as usually happens in the development of a legal principle, and the result has been that what is meant by an “intelligent waiver” has now been clarified by illustration. With respect to the case at bar, it is quite clear, as every one seems to admit, that there was no waiver of the right to counsel or indeed any reason to believe that the existence of the privilege was known to the defendant. Furthermore, it is well nigh certain that if the robbery cases had been investigated by competent counsel for the defense, and the past history of the defendants had been disclosed, the court would have realized that the crimes, serious though they were, did not justify the imposition of a sentence for life.
The refusal of the court in the pending case to act upon the merits of the case means that the illegal imprisonment of the appellant will be inevitably prolonged. We have no power to speak for the state wDurt or to control its decisions, and we have no assurance that it will change its position if the defendant seeks its aid. If it stands firm, so much additional invalid sentence must be served as the tedious progress of the case through the state courts up to the Supreme Court of the United States will involve. In any event, some substantial period of time must elapse before the state court can act, while it is within our power to correct the wrong today. We should exercise the power immediately, bearing in mind that the rights of the individual are to be preferred to the niceties of judicial procedure, or to considerations of comity between the state and federal courts.
The appellant has exhausted his remedies in the state courts; and there is no Justification or precedent for the requirement that he apply to them a second time to decide the precise question they have already determined.