Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.
Appellant was convicted on September 23, 1953 in the Berks County Court of Oyer and Terminer, Pennsylvania, of burglary and larceny and carrying firearms without a license. He was sentenced to a prison term of not less than 7 1/2 years and not more than 20 years. There was no appeal from the conviction.
On January 29, 1954 he filed a petition for a writ of habeas corpus in the Berks County Court of the Common Pleas. The petition was dismissed and an appeal taken from the dismissal to the Pennsylvania Superior Court. That tribunal, in an opinion found at Commonwealth ex rel. Luzzi v. Tees, 176 Pa.Super. 528, 108 A.2d 921, affirmed the order of the lower court. The opinion discusses seriation the grounds on which the petition was based. The first of these was the alleged perjured testimony of a William H. Kline bearing on the identification of appellant at the scene of the robbery. The second dealt with the fact that the sister-in-law of the person robbed served on the jury which found appellant guilty. The third complained of treatment by the State Police. The last point presented was that no notes of testimony had been taken at the trial. There was no appeal from the Superior Court decision.
On July 14, 1955, application was made to the Berks County Court for a writ of coram nobis. The petition set out its grounds as: "1. Court Error, that it failed to establish your petitioner at the scene of supposed crime. 2. Court Errored, when it failed to allow petitioner right to see a (stet) indictment or copy of same, so as to know who was prosecutor, and who was the name of the prosecutor, as he could have challenged the jury according to law. 3. Court Errored, when it accepted perjured testimony to be a matter of record. 4. Your petitioner is innocent of the offense as charged." Under the caption "Argument of Errors" petitioner asserted that he did not see a copy of the indictment until he pleaded "not guilty". He claimed that at that time he did not see the name of the victim of the robbery who, he states, "would surely be the prosecutor in the * * * case, * * *."
The Berks County Court of Quarter Sessions, in denying the petition, stated the latter's grounds as follows: "* * * in summary, that there was error committed at the trial in that it was not established that the petitioner was at the scene of the crime; that the petitioner was not allowed to see the indictments; that the court accepted perjured testimony and, that the petitioner is innocent of the offenses for which he was convicted." No mention was made of the juror question. The Superior Court affirmed in Commonwealth ex rel. Luzzi v. Courts of Quarter Sessions and Oyer and Terminer of Berks County, 179 Pa.Super. 486, 118 A.2d 227. The opinion stated 179 Pa. at page 487, 118 A.2d at page 227: "Relator's petition for the writ of error coram nobis set forth: (1) That it was not established at the trial that he was at the scene of the crime; (2) that he was not allowed to see a copy of the indictment; (3) that perjured testimony was accepted at the trial; and (4) that he was innocent of the offense charged." There was no reference in the opinion to the juror point appearing in the body of the petition. Allocatur to the Pennsylvania Supreme Court was denied December 27, 1955 (302A Misc. Docket No. 10).
Petition for certiorari to the United States Supreme Court was denied March 26, 1956, 350 U.S. 1001, 100 L. Ed. 865. In that petition, the second stated question was: "Is it not a Constitutional right that an accused in a criminal trial must be given a copy of the indictment so that he can know who is the complainant and who is the prosecutor in the case, so that he can challenge the jury according to law when the jury is being selected. And also so that he can prepare to meet anything and everything that the State has against him and not be taken by surprise?"
It should be here noted that appellant in his reply brief, referring to the Berks County Court opinion dismissing his petition for habeas corpus, states:
"It also added that Habeas Corpus was not the proper remedy, but that Coram Nobis was the remedy to seek, and dismissed the petition.
"Thereupon, appellant petitioned the Berks County Court for a Writ of Coram Nobis which was refused with a hint that appellant could apply to the Board of Pardons."
There is no allusion in the brief or otherwise to the appeal from the judgment dismissing the habeas corpus. It was only after the decision of the Superior Court affirming the dismissal that the attempt to obtain a writ of coram nobis was made. However, under all the circumstances, we prefer to deal with this appeal on its merits and will therefore so proceed.
On April 12, 1956 a motion for a new trial was filed. The motion was denied and no appeal taken.
The federal proceedings followed. On May 25, 1956 a petition for writ of habeas corpus was filed.On June 5, 1956 the petition was dismissed as it failed to show on its face that state remedies had been exhausted. On June 11, 1956 a petition for reconsideration was filed in which the above sequence of state habeas corpus and coram nobis steps was set forth. The petition was reinstated by order of June 18, 1956 and came on for hearing November 2, 1956.
The questions involved as stated in the petition were: "1. That the arresting officer, one Robert G. Shuck, of the Pennsylvania State Police committed the crime of subornation of perjury, in that he induced a witness for the State to testify falsely at the trial. 2. That perjured testimony was used to make sure the petitioner was convicted. 3. That he could not have had a fair and impartial verdict because one of the jurors was a relative of the complainant in the case. 4. That the trial court suppressed the taking down of any testimony and thereby denied this ...