Before McAUGHLIN, STALEY and HASTIE, Circuit Judges.
The relator complains of the refusal of the district court to issue a writ of habeas corpus. He alleges that on March 31, 1930, he entered a plea of nolo contendere to the charges of "assault and battery - being armed with an offensive weapon, and carrying concealed deadly weapons," and was sentenced to serve six to fifteen years*fn1 in the Eastern Penitentiary of Pennsylvania. If these allegations are true, it is clear that the sentence was excessive and that relator has been unlawfully detained.
We are satisfied that relator has exhausted his state remedies.The record discloses that in January, 1949, the relator filed a petition for a writ of habeas corpus in the Court of Oyer and Terminer and General Jail Delivery of Philadelphia County. On February 16, 1949, an order was entered by Judge Kun refusing the writ and an opinion was filed the same day.Relator's subsequent motion in the Superior Court for leave to appeal to that court in forma pauperis was refused on March 28, 1949, following which relator's successive petitions to the Pennsylvania Supreme Court and the Supreme Court of the United States were denied.*fn2
On July 29, 1949, relator next filed a petition for a writ of habeas corpus in the Court of Common Pleas of Montgomery County. Judge Knight awarded the writ and a full hearing was held. On September 27, 1949, that court handed down an opinion and entered an order dismissing the writ. With the aid of court-appointed counsel, relator appealed to the Superior Court of Pennsylvania which affirmed the order below. Commonwealth ex rel. Monaghan v. Burke, 1950, 167 Pa.Super. 417, 74 A.2d 802. Relator's petition to the Supreme Court of Pennsylvania for an allowance of appeal and his subsequent petition to the Supreme Court of the United States for a writ of certiorari*fn3 were both denied.
On July 24, 1951, relator commenced the present action by a petition for a writ of habeas corpus in the District Court for the Eastern District of Pennsylvania. An order to show cause was entered and a hearing held before Judge Grim, following which the petition was denied. A certificate of probable cause was granted by that court and this appeal followed.
The papers and records with respect to relator's conviction in 1930 and subsequent commitment to the penitentiary are replete with confusion. It is indeed to be regretted that the papers on which a man's liberty depends should be so inaccurate and inconsistent. Relator's commitment papers state that he was convicted of "robbery, being armed with an offensive weapon." The docket entries maintained by the Clerk of the Court of Quarter Sessions however, state that defendant was charged with "assault and battery with an offensive weapon," and are thus in conformance with relator's own testimony before the district court.
The Bill of Indictment (No. 1212) presents still a third version. Appellant and his co-defendant are charged with:
1. Assault, being armed with an offensive weapon with intent to rob.
2. Attempted armed robbery.
3. Attempted robbery and at the commission thereof, striking, beating and illusing.
This document has endorsed on its cover over the signature of Judge Horace Stern the following:
The Defendants being arraigned, plead and stand mute. Dist. Atty. Sim et issue. By direction of the Court ...