The opinion of the court was delivered by: SHERIDAN
Petitioner, John Yodock, filed a petition titled, 'Writ of Error Coram Nobis and Motion to Set Aside Conviction', which this court treated as a motion to vacate, set aside or correct the sentence under Title 28 U.S.C.A. § 2255 and held a hearing.
On June 6, 1938, the Grand Jury returned a two count indictment which charged petitioner with the attempted robbery of the Plymouth National Bank, Plymouth, Pennsylvania, on March 31, 1938. Petitioner was convicted and sentenced to a prison term of 15 years to commence at the expiration of a state prison sentence then being served. He started to serve his federal sentence on May 9, 1948. On August 25, 1957, he received a mandatory release. He has been in prison since July 14, 1962 as a parole violator. His prospective mandatory release date is May 11, 1966.
Several grounds are alleged in the petition, but at the hearing the only one pressed was that petitioner's constitutional rights were violated because his court-appointed counsel had insufficient time to prepare a defense.
Petitioner's trial started in Harrisburg at 10:00 a.m. on December 6, 1939. At 4:00 a.m. on that morning petitioner, then an inmate of the Eastern Penitentiary at Philadelphia, had been awakened by two guards and told to get dressed as he was going on a trip. He arrived at Harrisburg at about 9:30 a.m. and then learned for the first time that he was under indictment for the Plymouth bank robbery. Prior to that time he had not received a copy or any notice of the indictment, which had been returned by the Grand Jury on June 6, 1938. Although Judge Watson held that the same contention in a prior petition
was without merit, the record clearly supports petitioner. The docket entries show that petitioner was not arraigned until December 6, 1939.
Petitioner's allegation and testimony are not an attempt to contradict the record, as concluded by Judge Watson. That he was arraigned according to law on the trial date is not responsive to the charge that he did not know of the accusation prior to the trial date. The docket entries also show that the bench warrant, issued June 17, 1938, was returned on June 22, 1938 as unserved because of the absence of the defendant from the jurisdiction.
When the case was called for trial, petitioner was without counsel. After the arraignment, Judge Watson appointed Attorney John H. Moody, of Harrisburg, as defense counsel. The trial commenced immediately with the selection of a jury. It was Mr. Moody's first federal criminal case. He had been graduated from law school in 1937 and admitted to the Bar in 1938. He was in court as an observer. As soon as he was appointed, the trial commenced. He had no opportunity to discuss the case with his client.
His opponent had a year and one-half in which to prepare. One of the subpoenas, issued under date of November 17, 1939, and served on the Federal Bureau of Investigation, Washington, D.C., required the proper person to appear with various articles
which had been submitted to the Bureau in April of 1938 for testing. The trial was completed in a day plus one hour. On December 6, 1939:
Defendant arraigned -- plea of not guilty.
Court appointed counsel for defendant.
Jury selected -- 28 jurors called. Defendant challenged 10. Government challenged 6.
Attorney Maguire (Asst. U.S. Attorney) -- opened to jury.
Twelve witnesses were called by the Government and all but one were crossed-examined. Four witnesses were subpoenaed from York, Pa., two from Philadelphia, Pa., three from Plymouth, Pa., and one from Wyoming, Pa., Towson, Md., and Washington, D.C.
Government rested at 4:40 p.m.
Defendant rested at 4:40 p.m.
Mr. Maguire closed to the jury -- 10:10 a.m. ...