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COMMONWEALTH EX REL. KAYLOR v. ASHE (07/20/50)

July 20, 1950

COMMONWEALTH EX REL. KAYLOR
v.
ASHE, WARDEN



COUNSEL

John Drew, Pittsburgh, for appellant.

William S. Rahauser, Dist. Atty., Owen B. McManus, Asst. Dist. Atty., Pittsburgh, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.

Author: Per Curiam.

[ 167 Pa. Super. Page 264]

PER CURIAM.

Relator on February 8, 1950, presented to this Court his petition for writ of habeas corpus. We granted a rule to show cause why the writ should not issue. Answers were filed to the petition. The case was listed for argument, and upon petition of the relator we appointed counsel who made an oral argument and filed a brief on his behalf. The District Attorney of Allegheny County filed a brief and presented the argument for the Commonwealth.

[ 167 Pa. Super. Page 265]

The reasons advanced by relator in his petition for the writ were (1) that relator was convicted on the basis of perjured testimony; (2) that relator was not properly represented by counsel; and (3) that relator was denied the right to be present in person during the selection and impaneling of the jury at his trial. The first two contentions have no merit. See Commonwealth ex rel. De Poe v. Ashe, Pa. Super., 74 A.2d 767. Present counsel for relator, at the argument and in his brief, concedes that there would be no useful purpose served by arguing these points.

Relator who is now confined in the Western State Penitentiary was charged with the commission of statutory rape and incestuous adultery on his thirteen-year-old daughter.

It appears from the record that relator was indicted for statutory rape at No. 50, May Sessions, 1947, in the Court of Oyer and Terminer of Allegheny County, and for incestuous adultery at No. 103, May Sessions, 1947, in the Court of Quarter Sessions of Allegheny County. The bill of indictment charging incestuous adultery was certified to the Court of Oyer and Terminer, and relator was tried on the two bills of indictment on May 27, 1947. The jury returned a verdict of guilty on each bill. On June 20, 1947, relator was sentenced on bill No. 50, May Sessions, 1947, to undergo imprisonment in the Western State Penitentiary for a term of not less than seven and one-half years nor more than fifteen years, the sentence to be effective as of April 22, 1947. Sentence was suspended on bill No. 103 by reason of the sentence on the statutory rape charge on bill No. 50.

Relator attempts to support the averment in his petition that he was not present when the jury which was to try him was selected and impaneled by submitting an affidavit of Martin E. Geary, Esq., the attorney appointed by the trial court to represent relator at his trial. The affidavit sets forth 'that, pursuant to such

[ 167 Pa. Super. Page 266]

    appointment, and acting in his capacity as said Kaylor's counsel, he, the said Geary, was present at, and participated in the selection and impanelling of a jury to try said Kaylor for such crimes; that said Kaylor was not present during, nor did he participate in, the selection and impanelling of such jury; that, after the selection and impanelling of such jury he, the said Geary went to the prisoners' ...


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