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UNITED STATES EX REL. ACKERMAN v. JOHNSTON

December 2, 1955

UNITED STATES ex rel. Alfred J. ACKERMAN
v.
Frank C. JOHNSTON, Warden, Western State Penitentiary



The opinion of the court was delivered by: MARSH

The relator and respondent agree to the following findings of fact, which are adopted by the court:

1. Petitioner, Alfred J. Ackerman, is a citizen of the United States and a resident of the County of Allegheny, Commonwealth of Pennsylvania in this district.

 2. At the time when these proceedings were instituted, petitioner was confined to the Western State Penitentiary in the custody of F. C. Johnston, Warden, as a state prisoner.

 3. Petitioner was originally committed to the Allegheny County Jail on March 4, 1955, by the Court of Quarter Sessions of Allegheny County, Pennsylvania, by virtue of a judgment rendered January 8, 1954, at Nos. 162 May Sessions, 1953; 293 March Sessions, 1953; and Nos. 165, 130, 122, 41, 53, 62 and 105 May Sessions, 1953. The sentence imposed was a fine of 6 1/4 cents on each case and confinement in the Allegheny County Jail for a total period of two years.

 4. Subsequent to petitioner's commitment to the Allegheny County Jail, a petition for Modification of Sentence was presented to the Court of Quarter Sessions, requesting defendant Ackerman's transfer from the Allegheny County Jail to a private hospital, by reason of his physical condition. After hearing, the said court transferred petitioner to the hospital of the Western State Penitentiary, the transfer having been made under the authority of the Act of May 31, 1919, P.L. 356, 61 P.S. §§ 81, 82.

 5. Following petitioner' sentence at the above numbers and terms, appeals were taken to the Superior Court of Pennsylvania. Judgment of sentence was affirmed except as to the case at No. 293 March Term, 1953, by opinion reported in Com. v. Ackerman, 176 Pa. Super. 80, 106 A.2d 886. Thereafter application was made to the Supreme Court of Pennsylvania for leave to appeal from said decision, which application was refused without opinion. Application to the United States Supreme Court for certiorari was likewise refused without opinion on February 28, 1955, 348 U.S. 951, 75 S. Ct. 438, 99 L. Ed. 743.

 6. The printed record of the proceedings in the state courts was introduced in evidence in this proceeding pursuant to a stipulation by counsel for petitioner and the Assistant District Attorney waiving the requirement that the District Attorney produce certified copies of the original information and indictments upon which the prosecution was based.

 7. Said record discloses that petitioner, Alfred J. Ackerman was tried in the Court of Quarter Sessions of Allegheny County, Pennsylvania, upon 80 separate indictments. A co-defendant, J. B. Bolden, was tried at the same time before the same jury on 26 separate indictments.

 8. Defendant Ackerman was found guilty on 57 of said indictments and not guilty on 18. Demurrers were sustained to four of the indictments and in one case the jury failed to return a verdict and the District Attorney agreed to a nolle pros. Sentence was imposed on nine indictments and suspended upon the remaining 48 cases and defendant ordered to pay costs.

 9. The 80 charges against defendant Ackerman which were consolidated for trial include the following: 30 charges of False Pretense; 8 charges of Extortion; 40 charges of Misdemeanor in Office; one charge of Conspiracy and one of Violation of the Motor Vehicle Code. Under Pennsylvania law, False Pretense is a felony. The other charges are misdemeanors.

 10. Trial of the case extended from May 20th through May 29, 1953, the Commonwealth calling and recalling 108 witnesses and the defendants 22. Seventy pages of the total 1,424-page record are required for the charge of the court.

 11. The 106 separate indictments against Alfred J. Ackerman and his co-defendant, grew out of approximately 37 separate fact situations which were presented to the jury by file numbers.

 Discussion and Conclusions of Law. *fn1"

 This petition alleges that relator's confinement resulted from a denial of due process and that he has exhausted the remedies ...


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