avers that the jury had been sworn before his entry into the courtroom, but in the very next paragraph he asserts:
'2. That Court (appointed) attorney would not peruse (use) any of relator's (21) challenges or others for cause on or of jury. [sic]'
Again, on page 9, after reasserting that the jury had been empanelled before relator's entry into the courtroom and that his attorney did not protest 'the already sworn jury', he asserts:
'FF. Attorney would not peruse (use) relator's (21) entitled jury challenges, * * *.'
We think the court records justify the finding that relator had an opportunity to exercise his right of challenge.
He further complains that he was confined in jail at the time the jury returned the guilty verdict and was sentenced in absence of his attorney; nevertheless with apparent first-hand knowledge and assured recollection he states in his petition aforesaid, at page 10:
'GG. Attorney would not poll the jury individually after rendered verdict, * * *
* * * * *
'That said relator's trial jury, upon re-entry into said courtroom with Guilty Verdict, they (the) said jury were inquired thereof by said Fayette County Trial Judge Morrow: 'Have you found him (relator) guilty on the directed 3, 4, 6 counts?' Being answered in the affirmative by jury, Trial Judge Morrow remarked: 'So be it."
Nowhere in the fully detailed petition of 1948 does relator aver that he was not present in court when the jury rendered its verdict, or that his counsel was not present when he was sentenced.
At the hearing, relator testified unequivocally that he was brought back to the courtroom only one time after the verdict and was sentenced in the absence of his counsel. In his brief to the Superior Court, which he signed in propria persona, he evidences his counsel's presence in the courtroom after the verdict by quoting him.
In the light of these inconsistencies, we attach no credence to relator's present testimony that he was in jail when the verdict of guilty was pronounced and that he was sentenced in absence of his counsel.
At the hearing, relator testified that his counsel refused to ask the trial judge to have the testimony recorded stenographically; that he himself then asked the judge for a stenographer; that the prosecutor objected; that the court did not rule on his request but that the testimony was not recorded. In the 1948 petition the only reference to this issue is found on page 10 where it is averred that his 'attorney * * * would not demand a trial transcription of minutes of case be authorized, etc.' No mention is made of his personal request and the refusal of the court to comply. But in relator's petition for habeas corpus to the Court of Common Pleas of Fayette County, he avers that his counsel demanded a "Court Trial Transcript of Minutes' be taken, transcribed and kept as a matter of official record'.
Again, in the light of these inconsistencies, we can attach no credence to his testimony that he personally requested that a stenographic record of the trial be made.
When all the foregoing contradictions are considered in conjunction with the court records, the presumption of regularity which attaches to a trial of a non-capital felony, and the long delay in presenting the alleged violations, the court is constrained to conclude that relator has failed to meet his burden of establishing any of the averments of his petition by a fair preponderance of the evidence.
Conclusion of Law
1. The relator has exhausted his State Court remedies.
2. This court has jurisdiction of the subject matter and of relator's person.
3. The evidence fails to establish that relator was convicted at No. 6/106 September Sessions, 1940, in the Court of Oyer & Terminer and General Jail Delivery without due process of law in violation of his constitutional rights.
4. The application for writ of habeas corpus will be denied.