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March 29, 1944

THOMPSON, Warden, et al.

The opinion of the court was delivered by: HULBERT

HULBERT, District Judge.

Petition for writ of habeas corpus is denied, writ dismissed and prisoner remanded.

Gene McCann was convicted on July 22nd, 1941, after trial to the court without a jury, upon an indictment charging use of the mails to defraud. He was authorized to defend that action, as he has been authorized to carry on all subsequent proceedings, in forma pauperis. He appealed from that judgment but, unable to procure a typewritten transcript of the record, he made up such a bill of exceptions as he was able to do. Subsequently the United States Attorney procured from the official reporter, and filed, a transcript of the record (furnishing petitioner with a copy) which was settled by the trial judge.

 The petitioner has challenged the accuracy of the transcript of the record on the trial filed by the United States Attorney and the Appellate Court has vacated the order made by the trial judge which settled that record and has directed this court to resettle the same.

 In the meantime petitioner sought his release by habeas corpus proceedings upon the ground that his trial by jury, without the benefit of counsel to advise him concerning his rights in waiving a trial by jury, was in violation of the Fifth Amendment to the Constitution of the United States.

 A writ allowed and sustained by the Circuit Court of Appeals *fn1" was reversed by the United States Supreme Court. *fn2" Thereafter a writ *fn3" allowed by a judge of this court was, after argument upon the papers, denied, and the order dismissing the writ was affirmed. *fn4" Certiorari was granted and on the consent of the Attorney General there was a reversal by the United States Supreme Court. *fn5" In accordance with its directions, and after extensive hearings were had, the petition was denied *fn6" and from the order thereon entered a second appeal was taken and is pending undetermined.

 The hearing on the writ of habeas corpus before this court covered an intermittent period from early in November, 1943, until the end of January, 1944.A typewritten transcript of the record will constitute approximately 2,000 pages. The statute, 36 Stat. 1088, as amended by Chap. 3, Public Law 222, H.R. 3611, 78th Congress, 2nd Session, 28 U.S.C.A. §§ 9a, 9b, has not become operative so as to enable the petitioner to obtain the typewritten transcript of the record at the expense of the Government; the reporter is already out of pocket for the services of the stenographer who reported the proceeding and to make a typewritten transcript would, he claims, cost him an additional $1,200 or $1,500.

 The petitioner contends, through his counsel, that he finds himself beset in the prosecution of his pending appeals with well-nigh insuperable obstacles. This proceeding appears to be an attempt to by-pass them.

 This court has a compassionate regard for the counsel for petitioner who have been assigned by the court and have labored earnestly, in fact, assiduously for the petitioner without compensation and feels that an opportunity should be afforded for the consideration and determination of the questions here sought to be raised, as inexfpensively, so far as time of counsel is concerned, and speedily, for the benefit of the petitioner.

 The principle contention now raised is that the indictment returned against Gene McCann was found by less than a legal quorum and that he should therefore be discharged from custody.

 This question was presented on the previous hearing. Reference should be had to the notice of motion dated March 5, 1941 (Clerk's File C-109-231) as to relief which the petitioner sought by plea in abatement and motion to quash before a plea was entered to the indictment, upon which he was thereafter tried. See paragraphs 2, 3 and 8 of the notice of motion and paragraphs 29, 30, 31, 34 and 35 of a supporting affidavit verified by the petitioner March 5, 1941.

 These allegations were controverted by affidavits submitted on behalf of the Government in opposition thereto, to which the petitioner interposed a replying affidavit verified March 20, 1941. See paragraphs 3, 4, 6, 7, 9, 10, 11 and 12.

 This court felt that it was not within the issue as defined by the United States Supreme Court in its opinion directing that a hearing be had, to pass upon and decide the other points raised by the petitioner, and pointed out that the remedy of the petitioner was by appeal from the order entered on the decision of the judge who denied the plea in abstement and motion to quash.

 Challenges to the array or to individual grand jurors were recognized at common law and are available both to the prosecution and the accused in federal courts.If, however, as the petitioner contends, the procedure is to be governed by the law of the State of New York, the provisions of the Code of Criminal Procedure (Sections 235, 237 and 238) would not avail him of any benefit at this stage of the ...

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