law. Commonwealth v. Adams, 1958, 187 Pa.Super. 611, 614, 145 A.2d 729.
It is settled law that the constitutional guarantee to a speedy and public trial by jury in all criminal prosecutions pertains only to Federal prosecutions. Betts v. Brady, 1942, 316 U.S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595. The states are free to determine their own practice with regard to the right of a criminal defendant to a jury trial and to the assistance of counsel, providing that such practice shall not deprive the accused of life, liberty, or property without due process of law. Bute v. People of State of Illinois, 1948, 333 U.S. 640, at pages 662, 663, 68 S. Ct. 763, 92 L. Ed. 986. The requirement that the waiver of a jury trial (or of the right to be tried by twelve jurors) must be manifest by an express, intelligent act of the defendant is a rule applicable to Federal criminal trials only. The judgment of the Pennsylvania courts that the petitioner's waiver was adequate under Pennsylvania law was conclusive and cannot be reviewed by this Court in a habeas corpus proceeding. Coates v. Lawrence, D.C.Ga.1942, 46 F.Supp. 414, affirmed 5 Cir., 131 F.2d 110, certiorari denied 318 U.S. 759, 63 S. Ct. 532, 87 L. Ed. 1132; Brown v. Allen, 1953, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469. We conclude that the petitioner's contention that he was deprived of a constitutional right by a jury trial of twelve jurors has no merit.
The Pennsylvania State Courts also held that the bills of indictment and the consolidation for trial of the indictments charging separate and distinct offenses was not objectionable under Pennsylvania law because the defendant was not prejudiced thereby. Commonwealth v. Nestor, 1957, 183 Pa.Super. 350, 132 A.2d 369. Furthermore, the action of the trial court in consolidating indictments is not open to attack on a habeas corpus proceeding. Commonwealth ex rel. Tokarchik v. Claudy, 1954, 174 Pa.Super. 509, 102 A.2d 107, certiorari denied Tokarchik v. Claudy, 347 U.S. 993, 74 S. Ct. 857, 98 L. Ed. 1126; United States ex rel. Borday v. Claudy, D.C.M.D.Pa.1952, 108 F.Supp. 778. We conclude that the petitioner's argument with respect to the bills of indictment is without merit.
And now, to wit, this 9th day of August, 1961, it is hereby ordered that the petition for a writ of habeas corpus is denied.
On Motion For Appointment Of Counsel
In view of our Order entered eo die 196 F.Supp. 50, denying petitioner's application for a writ of habeas corpus, there is no justification nor necessity for the appointment of counsel for him as requested. The brief petition filed by the prisoner states:
'He (petitioner) feels that in the event this Court issues a Show Cause Order, he would find himself at a marked disadvantage if called to cope with the anticipated barrage of technical legalisms the district attorney and his aids would raise to befog the issue.'
The above-mentioned Order clearly indicates that in the opinion of the Court counsel at this stage of the proceedings would be of no assistance whatever in this case. Furthermore, we know of no authority which requires us to appoint counsel, assuming the prisoner to be indigent, merely because, in his opinion and as stated in his petition, he wishes to 'make an equal contest of it.'
Therefore, we will consider the petition as a motion for the appointment of counsel and as such is denied.