(dissenting).
I disagree with the factual statement of the majority that the record “establishes that Kennedy in fact * * * was sentenced for two attempts at larceny by trick and the completed offense of obtaining money by false pretense in accordance with the facts of his case.” My independent review of the record indicates that, at Nos. 225 and 226, Kennedy was sentenced for the completed offenses of larceny and, in addition to the imprisonment and fine imposed, was required to “restore the property stolen.”
Prior to the decision of this court in Johnson v. Dye, 3 Cir., 175 F.2d 250, 255, in which I filed a dissenting opinion, I *98had been of the belief that the scope of appellate review of habeas corpus petitions was not de novo. If, however, as this court held in that case, “ * * * upon appeal in a habeas corpus case all questions of law or fact arising upon the record, including the evidence, are open to consideration by the appellate court1 and the trial court has no authority to make conclusive findings of fact as in the ordinary action, Johnson v. Sayre, 158 U.S. 109, 15 S.Ct. 773, 39 L.Ed. 914, and we are not bound by the conclusions of the trial court, Carruthers v. Reed, 8 Cir., 102 F.2d 933, 937”, under the special circumstances here presented, I would then conclude that “ * * * the opportunity to have counsel in this case was a necessary element of a fair hearing.” Uveges v. Commonwealth of Pennsylvania, 1948, 335 U.S. 437, 442, 69 S.Ct. 184, 186.