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UNITED STATES EX REL. DE SIMONE v. PENNSYLVANIA

June 4, 1956

UNITED STATES of America ex rel. John DE SIMONE, Petitioner,
v.
COMMONWEALTH OF PENNSYLVANIA, Frank C. Johnston, Warden, et al. Western State Penitentiary



The opinion of the court was delivered by: MARSH

A rule to show cause was issued upon receipt of relator's petition for a writ of habeas corpus. An answer, together with transcript of certain records, was filed by the District Attorney of Fayette County. Examination of the answer and these records indicated that relator had not been given a hearing on his applications for habeas corpus in the State courts, and since several disputed issues of fact appeared from the pleadings, a writ of habeas corpus was issued and a date for hearing was fixed. *fn1"

The relator testified at the hearing and certain records were introduced into evidence. From the testimony and records, and after argument and examination of the briefs submitted by the appointed counsel for relator, the court makes the following

 Findings of Fact

 1. John DeSimone, the relator was arrested on July 27, 1940 with two companions, and charged with assault and battery, assault and battery with intent to rob, armed robbery, robbery with accomplice, possession of burglary tools and burglary.

 2. After the arrest, relator was kept in various jails and in the State Police Barracks until July 31st when he was given a preliminary hearing before a justice of the peace at which he pleaded guilty only to armed robbery.

 3. After the hearing, he was confined in the county jail at Uniontown, where he remained until he was called up for trial.

 4. A true bill was found on August 27, 1940 at No. 6/106 September Sessions, 1940, in the Court of Oyer & Terminer and General Jail Delivery of Fayette County.

 5. From the time of his arrest until trial, the relator did not seek the aid of counsel, relatives or friends.

 6. On September 4, 1940 relator's co-defendants, Ernest Ford and Albert Bodnic, pleaded guilty.

 7. On September 4, 1940 relator pleaded not guilty. His court-appointed attorney signed the plea of not guilty on the indictment in his behalf.

 8. A minute of the Court of Oyer & Terminer of Fayette County, at page 185 (Respondents' Exhibit 6), contains the following entry with reference to relator's trial at No. 6/106 September Sessions, 1940:

 'Now -- September 4 -- 1940 this case being called for trial the defendant pleads not guilty, Dist. Atty. Similiter issue etc., a jury being called came as follows: -- (names of jurors listed).

 'Twelve good & lawful citizens who having been regularly summoned & duly returned to serve on Petit Jury, who having been duly sworn find the defendant -- Guilty as Indicted.'

 9. The record in the Clerk's office of Fayette County, at page 404 (Relator's Exhibit 1), shows that the jury was called and sworn on the same day that the relator pleaded not guilty. *fn2"

 10. Although he did not request counsel, a member of the bar of Fayette County was procured for him and represented him throughout the trial.

 11. From the records and the testimony, we conclude that the jury was called and sworn the same day relator pleaded not guilty; that relator was present in the courtroom with his lawyer; that he had the opportunity to exercise his right to challenge jurors peremptorily and for cause.

 12. On September 5, 1940, the jury found the relator guilty as indicted.

 13. The same day, he was sentenced on the 3rd, 4th and 6th counts to pay a fine of 6 1/4 cents, the costs of prosecution and undergo an imprisonment for an indefinite term, the minimum of which shall be 7 1/2 years and the maximum 20 years, ...


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