and is made in the discretion of the trial judge, the exercise of which will ordinarily not be reviewed.' (Emphasis supplied)
It was for the trial court to decide in its discretion whether the petitioner's 'dissatisfaction' merited delaying the trial and the appointment of new counsel to defend him. Such a request coming on the day of trial, and particularly in light of his attorney's statement that he had no notice of this fact as recently as three days before trial, fully justified the trial judge's refusal to appoint new counsel or grant a continuance. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 849, 11 L. Ed. 2d 921 (1964).
'The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel.' Also see United States ex rel. Puntari v. Maroney, 220 F.Supp. 801 (W.D.Pa.1963); Com. v. Novak, 395 Pa. 199, 213, 214, 150 A.2d 102 (1959).
Our independent examination of the record discloses that petitioner's claim on this ground is without substance and it is accordingly dismissed.
The two remaining constitutional claims are: that the petitioner was denied due process because he was not accorded a speedy trial; and the indictment is defective because the petitioner never signed it when he entered his guilty plea. While it is unfortunate that the petitioner was confined for nearly two years before trial, he has not stated any facts in his petition which show that this delay caused the trial to be unfair. Furthermore, since the petitioner did not allege that he had demanded an earlier trial he is not entitled to protest at this late date. Hastings v. McLeod, 261 F.2d 627, 628 (10 Cir. 1958).
The petitioner's attack on the indictment is frivolous and only goes to a defect of form which did not deprive the court of jurisdiction. Where the record shows, as does the instant case, that the defendant was informed of the precise accusation to which he was to plead and with such knowledge he pleads guilty, the mere absence of his signature does not vitiate an otherwise correct indictment. Com. ex rel. Banky v. Ashe, 142 Pa.Super. 396, 16 A.2d 668 (1940). The writ of habeas corpus will not lie to question the sufficiency of an indictment which on its fact is within the jurisdiction of the court to which it was returned and a writ of habeas corpus will not serve as a writ of error. United States ex rel. Potts v. Rabb, 141 F.2d 45, 47 (3 Cir. 1944); cert. denied 322 U.S. 727, 64 S. Ct. 943, 88 L. Ed. 1563 (1944).
While we have examined the merits of the petition, it also appears that a dismissal is warranted because of the petitioner's failure to exhaust his available State remedy of writ of error coram nobis. In United States ex rel. Wilkins v. Banmiller, 325 F.2d 514, 518 (3 Cir. 1963), the Court held that a prisoner who alleged that his plea of guilty to murder was coerced by the actions of the trial judge and his counsel was required to file a writ of error coram nobis in the Pennsylvania State Courts before proceeding in the Federal Court via habeas corpus.
In so ruling the Court said at page 518:
'It has been specifically held that it (coram nobis) is available 'to set aside a conviction obtained by duress or fraud' and 'to prevent a miscarriage of justice."
On either basis the petition is denied.
The Court gratefully acknowledges the unselfish service rendered by David S. Shrager, Esq., who accepted the Court's appointment as counsel for the petitioner.
And now, this 25th day of August, 1964, the petition for a writ of habeas corpus is denied.