Gustav W. Wilde, Pittsburgh, for appellant.
Albert A. Fiok, Asst. Dist. Atty., James F. Malone, Jr., Dist. Atty., Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright and Woodside, JJ.
On September 21, 1951, relator filed a petition for writ of habeas corpus in which he alleged, among other things, that he was not present when the jury returned its verdict. After hearing, the court below, on December 21, 1951, dismissed the petition. On appeal, this court affirmed the court below except as to the finding that relator was present when the verdict was
returned. Since the minutes of the original trial in the Court of Oyer and Terminer of Allegheny County at No. 7 February Sessions, 1939, affirmatively showed relator was present during the trial but did not affirmatively show that he was present when the verdict was received, this court remitted the record for further hearing and determination. See Commonwealth ex rel. Howard v. Claudy, 1953, 172 Pa. Super. 574, 93 A.2d 906, opinion by President Judge Rhodes.
Pursuant to our mandate, a second hearing was held on April 2, 1953, following which the hearing judge again found that relator was present when the verdict was returned and dismissed the petition. This appeal followed.
The trial of which relator complains occurred on June 22, 1939 -- almost 14 years prior to the second hearing -- and involved charges of felonious assault and battery and pointing firearms, and robbery. Relator was found guilty and received consecutive sentences to the Western State Penitentiary, which total not less than 8 1/2 years nor more than 17 years. Act of June 25, 1937, P.L. 2093, 19 P.S. § 897.*fn1
At the second hearing on the petition for writ of habeas corpus, the Commonwealth produced five trial jurors who could be located and explained the absence of the remaining seven. Of these, two had no recollection of the circumstances existing at the time of the verdict; however, the other three testified, without equivocation, that relator was present when the verdict was returned. Against this, relator offered only his own testimony that he was not present.
In a habeas corpus proceeding, the relator has the burden to prove facts which would ...