The opinion of the court was delivered by: MASTERSON
MASTERSON, District Judge.
Relator has filed a petition for a writ of habeas corpus attacking his 1969 convictions for assault and battery and aggravated assault and battery with intent to kill in the Court of Common Pleas of Philadelphia County. He is now serving a prison term of three to seven years.
In the instant petition, relator raises the same issues which were the basis of his direct appeal in the Pennsylvania appellate courts:
1) The evidence was insufficient as a matter of law to sustain a conviction for assault with intent to kill;
2) The evidence was insufficient as a matter of law to support a conviction for aggravated assault and battery.
The Superior Court of Pennsylvania affirmed the judgment of sentence per curiam. Commonwealth v. Brown, 217 Pa. Super. 745, 268 A. 2d 241 (1970). The Supreme Court of Pennsylvania denied relator's petition for allocatur on October 30, 1970.
"* * * the charges * * * were so totally devoid of evidentiary support as to render [the] conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment. Decision of this question turns not on the sufficiency of the evidence, but on whether [the] conviction rests upon any evidence at all."
See United States of America ex rel. Feinberg v. Rundle, 444 F.2d 402 (3rd Cir., filed June 28, 1971); United States ex rel. Johnson v. Rundle, 280 F. Supp. 453 (E.D. Pa.), aff'd, 404 F.2d 42 (3rd Cir. 1968), cert. denied, 395 U.S. 937, 89 S. Ct. 2004, 23 L. Ed. 2d 453 (1969).
The crime of assault with intent to kill is defined as follows in Pa. Stat. Ann. Title 18, § 4710 (Purdon's (1963)):
"Whoever administers, or causes to be administered by another, any poison or other destructive thing or stabs, cuts or wounds any person, or by any means causes any person bodily injury, dangerous to life, with intention to commit murder, is guilty of a felony, and shall on conviction, be sentenced to pay a fine not exceeding three thousand dollars ($3,000), or undergo imprisonment, by separate or solitary confinement at labor, not exceeding seven (7) years, or both."
Aggravated assault and battery is defined as follows in Title 18, § 4709:
"Whoever unlawfully and maliciously inflicts upon another person, either with or without any weapon or instrument, any grievous bodily harm, or unlawfully cuts, stabs or wounds any other person, is guilty of a misdemeanor, and upon conviction thereof, shall be sentenced to pay a fine not exceeding two thousand dollars ($2,000), or undergo imprisonment, either at labor by ...