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February 12, 1955

UNITED STATES of America, ex rel. David DARCY, Relator,
Earl D. HANDY, Warden of Bucks County Prison, Dr. Fred S. Baldi, Warden of the Western State Penitentiary, Rockview, and Carl H. Fleckenstine, United States Marshal for the Middle District of Pennsylvania, Respondents

The opinion of the court was delivered by: MURPHY

This case is here on remand, *fn1" a majority of the Court of Appeals having ruled that opportunity must be afforded relator to prove the allegations in his petition for habeas corpus, insofar as they relate to the alleged atmosphere of hysteria and prejudice prevailing at his trial, including any issues raised by Judge Boyer's asserted visits to the court room. *fn2" After a hearing was scheduled *fn3" respondent moved *fn4" to dismiss contending that the court lacked jurisdiction and judicial power to conduct the inquiry or to grant the writ. The motion is without merit. Similar questions were disposed of contrary to respondent's position in an opinion by Judge Goodrich speaking for the full court in United States ex rel. Elliott v. Hendricks, June 2, 1954, *fn5" 213 F.2d 922. See Id., at page 929. 'We cannot have any doubt, even were the question a new one, that the federal power is ample, under the Constitution, to authorize the use of habeas corpus procedure to test the question whether one confined under state process is, in that confinement, deprived of his rights under the Constitution of the United States. Nor have we doubt that the power may be assigned to all the federal judiciary or part of it. If the authority of federal courts is to be more limited than that provided by the present statute, that limitation must be made by the Congress.' And see Mr. Justice Reed in Brown v. Allen, supra, 344 U.S. at pages 460, 464, 478, 486, 73 S. Ct. at pages 408, 409, 411, 418, 422, and Mr. Justice, Frankfurter, Id., 344 U.S. 443, at page 508, 73 S. Ct. 437, at page 447, 'Congress has the power to distribute among the courts of the States and of the United States jurisdiction to determine federal claims. It has seen fit to give this Court power to review errors of federal law in State determinations, and in addition to give to the lower federal courts power to inquire into federal claims, by way of habeas corpus'. Id., 344 U.S. 510, 73 S. Ct. 448, 'Insofar as this jurisdiction enables federal district courts to entertain claims that State Supreme Courts have denied rights guaranteed by the United States Constitution, it is not a case of a lower court sitting in judgment on a higher court. It is merely one aspect of respecting the Supremacy Clause of the Constitution whereby federal law is higher than State law. It is for the Congress to designate the member in the hierarchy of the federal judiciary to express the higher law. The fact that Congress has authorized district courts to be the organ of the higher law rather than a Court of Appeals, or exclusively this Court, does not mean that it allows a lower court to overrule a higher court. It merely expresses the choice of Congress how the superior authority of federal law should be asserted.'

See Mr. Justice Black, 344 U.S. at page 549, 73 S. Ct. at page 431, 'I agree with the Court that the District Court had habeas corpus jurisdiction * * * including power to release * * * if (the prisoner is) held as a * * * violation of constitutional rights. This I understand to be a reaffirmance of the principle embodied in Moore v. Dempsey, 261 U.S. 86, 43 S. Ct. 265, 67 L. Ed. 543.' *fn6"

 Has the applicant met the burden of showing that he has exhausted the remedies available in the state courts within the meaning of 28 U.S.C.A. § 2254; Darr v. Burford, 339 U.S. 200, at page 218, 70 S. Ct. 587, 94 L. Ed. 761; Brown v. Allen, 344 U.S. at pages 448-450, 486, 487, 73 S. Ct. at pages 402-404, 422, supra? Respondent argues that the Pennsylvania Supreme Court did not directly meet and dispose of the question of hysteria and prejudice. See Commonwealth ex rel. Darcy v. Claudy, April 10, 1951, 367 Pa. 130, 79 A.2d 785.

 The Court of Appeals, however, found contra. See opinion C.J. Biggs, supra, 203 F.2d at page 411, describing the opinion in 367 Pa. 130, 79 A.2d 785, as 'passing on every substantial ground alleged in the petition.' *fn7" See and cf. Brown v. Allen, supra, 344 U.S. at page 458, 73 S. Ct. at pages 407, 408; United States ex rel. Smith v. Baldi, February 9, 1953, 344 U.S. 561, 73 S. Ct. 391, 97 L. Ed. 549; Commonwealth ex rel. Elliott v. Baldi, April 14, 1953, 373 Pa. 489, 96 A.2d 122, certiorari denied June 8, 1953, 345 U.S. 976, 73 S. Ct. 1125, 97 L. Ed. 1391.

 A remedy may be exhausted by affirmative use thereof and failure therein or by inaction or failure to resort thereto.

 Assuming arguendo there was some evidence of hysteria and prejudice before or at the trial, the law of Pennsylvania affords a number of methods of raising the question and spelling it out on the record and in the event of an adverse decision reserving it for review on appeal to the Supreme Court of Pennsylvania and on certiorari to the United States Supreme Court. Pre-trial, by challenging the array, see Commonwealth v. Zell and Herr, 81 Pa.Super. 145, at page 150, or by motion for continuance, Commonwealth v. Balles, 160 Pa.Super. 148, 150-151, 50 A.2d 729, or change of venue, commonwealth v. Karmendi, 328 Pa. 321, 339, 342, 195 A. 62. The Pennsylvania Supreme Court itself could upon proper showing remove the indictment to another county for trial, Commonwealth v. Ronemus, 205 Pa. 420, 54 A. 1095. At trial, by motion for withdrawal of juror, Commonwealth v. Mehlman, 163 Pa.Super. 534, 544, 63 A.2d 400. Post-trial, by motion for new trial, Commonwealth v. Deni, 317 Pa. 289, 293, 176 A. 919. Finally, on appeal and on petition for certiorari to the United States Supreme Court.

 No such question was suggested either before, during or after the trial. See Rel.Ex.Nos. 4, 5, 10, 115, 116, 137; the motion for a new trial and opinion denying same; the assignments of error and statements of question involved on appeal, see paper books Supreme Court of Pennsylvania, 362 Pa. 259-286; Commonwealth v. Darcy, May 26, 1949, 362 Pa. 259, 66 A.2d 663, rehearing refused June 24, 1949.

 The petition for certiorari (No. 96 Misc.), denied October 1949, 338 U.S. 862, 70 S. Ct. 96, 94 L. Ed. 528, raised only questions as to the jury view of the locus in quo and the charge of the court on presumptions from the use of a deadly weapon.

 August 1, 1949, relator petitioned the Supreme Court of Pennsylvania for a writ of habeas corpus complaining that at the trial, over objection, the jury heard testimony as to offenses committed by defendant other than that named in the indictment. Petition denied without opinion August 12, 1949 (not reported); certiorari denied (No. 102 Misc.) October 23, 1949, 338 U.S. 862, 70 S. Ct. 96, 94 L. Ed. 528.

 The question was not raised until after the relator failed in his attempt to have the Pennsylvania Board of Pardons commute his sentence to life imprisonment. (April 1950, denied May 5, 1950; application for reargument granted June 1950, continued to March 20, 1951, rejected March 21, 1951; again on March 29, 1951, rehearing denied March 30, 1951). April 2, 1951, relator's petition to the Supreme Court of Pennsylvania for certiorari to the Court of Oyer and Terminer of Bucks County, and for reargument nunc pro tunc, claimed denial of due process of law alleging that his trial counsel did not permit him to testify at his trial, (cf. opinion Biggs J., 203 F.2d at page 410, Maris J. at page 420); did not produce witnesses as to his background, good behavior, character or reputation although they were available; the proximity of the two trials; jurors' letters and opinions; hysteria; Judge Boyer's commendation and participation; and failure to continue the case. Denied without opinion April 3, 1951 (No. 429 Misc., Docket No. 9). Relator did not seek certiorari from the United States Supreme Court.

 April 3, 1951, the present petition was filed in the district court. We withheld ruling thereon to afford relator an opportunity to seek a writ of habeas corpus from the Supreme Court of Pennsylvania, raising the precise questions and, if he failed therein, to seek certiorari from the United States Supreme Court. The petition filed April 9, 1951, was denied April 10, 1951, Commonwealth ex rel. Darcy v. Claudy, 367 Pa. 130, 79 A.2d 785. *fn8"

 Application for certiorari filed June 12, 1951; denied October 8, 1951, 342 U.S. 837, 72 S. Ct. 61, 92 L. Ed. 632.

 In his petition for certiorari filed June 12, 1951, relator's counsel at p. 7 states 'All these facts were ascertained as a result of investigation by present counsel of the Petitioner and were presented to the Supreme Court of Pennsylvania for the first time in the Petition for Writ of Habeas Corpus which it refused on April 10, 1951.' *fn9" And at p. 3, '* * * former counsel of petitioner either failed to set forth said additional reasons or were unaware of the said additional reasons which for the most part were the result of investigation by present counsel'. And see Id. p. 12, '* * * former counsel, employed after the petitioner's conviction and prior to the employment of present counsel, either failed to include * * * or perhaps were unaware of the facts. * * *'

 Res adjudicata does not apply, Salinger v. Loisel, 265 U.S. 224, at page 230, 44 S. Ct. 519, 68 L. Ed. 989, see and cf. Brown v. Allen, supra, 344 U.S. at page 458, 73 S. Ct. at pages 407, 408, and Price v. Johnston, 334 U.S. 266, at page 291, 68 S. Ct. 1049, at page 1063, 92 L. Ed. 1356, 'If for some justifiable reason he was previously unable to assert his rights or was unaware of the significance of relevant facts, it is neither necessary nor reasonable to deny him all opportunity of obtaining judicial relief.' But cf. Id., 334 U.S. at page 289, 68 S. Ct. at page 1062, Wong Doo v. United States, 265 U.S. 239, 44 S. Ct. 524, 68 L. Ed. 999, and see dissent 334 U.S. at pages 296, 297, 68 S. Ct. at pages 1065, 1066; Darr v. Burford, supra, 339 U.S. at page 203, 70 S. Ct. at page 589; Brown v. Allen, supra, 344 U.S. at page 461, 73 S. Ct. at page 409, 'Liberal as the courts are and should be as to practice in setting out claimed violations of constitutional rights, the applicant must meet the statutory test of alleging facts that entitle him to relief.'

 A majority of the Court of Appeals rejected relator's claim of inefficient representation by trial counsel. This being so, if the situation were as obvious as relator now contends it must have been equally obvious to his trial counsel.

 'This is not the case of an accused who has been denied counsel and who has failed to assert his constitutional rights at the proper time because of ignorance, but of one who has had the assistance of able counsel who knew how to raise and would have raised upon the original trial the questions that he is now raising, if there had been any substance to them.' Crowe v. United States, 4 Cir., 1949, 175 F.2d 799, at page 801.

 'The writ of habeas corpus in federal courts is not authorized for state prisoners at the discretion of the federal court. It is only authorized when a state prisoner is in custody in violation of the Constitution of the United States. 28 U.S.C. § 2241. That fact is not to be tested by the use of habeas corpus in lieu of an appeal. To allow habeas corpus in such circumstances would subvert the entire system of state criminal justice and destroy state energy in the detection and punishment of crime.' Mr. Justice Reed, Brown v. Allen, supra, 344 U.S. at page 485, 73 S. Ct. at page 421.

 'If defenses may be omitted at trials, rights of review omitted, and yet availed of through habeas corpus, the whole course of criminal justice will be deranged, and, it may be, defeated.' Ex parte Spencer, 228 U.S. 652, at page 661, 33 S. Ct. 709, at page 711, 57 L. Ed. 1010, and see In re Wood, 140 U.S. 278, at page 290, 11 S. Ct. 738, 35 L. Ed. 505.

 'Evidence in state criminal proceedings to support objections on federal constitutional grounds, known to state defendants and their counsel, or easily ascertainable, cannot be withheld or neglected at the state trial and used later to support habeas corpus. State criminal proceedings would be unreasonably hampered.' Brown v. Allen, supra, 344 U.S. at page 480, 73 S. Ct. at page 419, footnote 24.

 Mr. Justice Reed, 'Failure to appeal is much like a failure to raise a known and existing question of unconstitutional proceeding or action prior to conviction or commitment. Such failure, of course, bars subsequent objection to conviction on those grounds.' Id., 344 U.S. at page 486, 73 S. Ct. at page 422, and see Id., 344 U.S. at page 487, 73 S. Ct. at page 422. '* * * failure to use a state's available remedy, in the absence of some interference or incapacity * * * bars federal habeas corpus.'

 As to the 'broad reach' given to federal habeas corpus by recent cases, see Mr. Justice Jackson in Brown v. Allen, supra, 344 U.S. at pages 532, 533, 73 S. Ct. at page 423. 'Once upon a time the writ could not be substituted for appeal or other reviewing process but challenged only legal competence or jurisdiction of the committing court. We have so departed from this principle that the profession now believes that the issues we actually consider on a federal prisoner's habeas corpus are substantially the same as would be considered on appeal.' Id., 344 U.S. at page 540, 73 S. Ct. at page 427.

 'Most states, and with good reason, will not suffer a collateral attack such as habeas corpus to be used as a substitute for or duplication of the appeal. A state properly may deny habeas corpus to raise either state or federal issues that were or could have been considered on appeal. Such restriction by the state should be respected by federal courts.' Id., 344 U.S. at page 541, 73 S. Ct. at page 427.

 As to the scope of review and possible relief on habeas corpus generally, see Commonwealth ex rel. Elliott v. Baldi, supra, 373 Pa. 489, at pages 492, 495, 96 A.2d 122; Commonwealth ex rel. Carey v. Montgomery County Prison Keeper, 370 Pa. 604, 88 A.2d 904; Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, 24 A.2d 1. See and cf. Woods v. Nierstheimer, 328 U.S. 211, 66 S. Ct. 996, 90 L. Ed. 1177; Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S. Ct. 262, 95 L. Ed. 215; Bowen v. Johnston, 306 U.S. 19, at pages 23, 24, 59 S. Ct. 442, 83 L. Ed. 455; finally, Waley v. Johnston, 316 U.S. 101, 104-105, 62 S. Ct. 964, 86 L. Ed. 1302.

 Mr. Justice Frankfurter, Brown v. Allen, supra, 344 U.S. at page 503, 73 S. Ct. at page 444, 'Of course, nothing we have said suggests that the federal habeas corpus jurisdiction can displace a State's procedural rule requiring that certain errors be raised on appeal. Normally rights under the Federal Constitution may be waived at the trial. Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S. Ct. 236, 87 L. Ed. 268, and may likewise be waived by failure to assert such errors on appeal. Compare Frank v. Mangum, 237 U.S. 309, 343, 35 S. Ct. 582, 593, 59 L. Ed. 969.'

 'When a State insists that a defendant be held to his choice of trial strategy and not be allowed to try a different tack on State habeas corpus, he may be deemed to have waived his claim and thus have no right to assert on federal habeas corpus. * * * However, this does not touch one of those extraordinary cases in which a substantial claim goes to the very foundation of a proceeding, as in Moore v. Dempsey, 261 U.S. 86, 43 S. Ct. 265, 67 L. Ed. 543. Cf. Ex parte Lange, 18 Wall 163, 21 L. Ed. 872; Ex parte Royall, 117 U.S. 241, 6 S. Ct. 734, 29 L. Ed. 868.' Id., 344 U.S. at page 503, 73 S. Ct. at page 444. Is this such a case?

 In view of the mandate we of necessity deferred answering this question until relator was afforded an opportunity to present evidence in support of his allegations. The burden of proving facts inconsistent with judicial records in all proceedings of this kind is heavy. Brown v. Allen, supra, 344 U.S. at page 507, 73 S. Ct. at page 446. Petitioner must 'allege and prove primary facts, not inferences, that show, notwithstanding the strong presumption of constitutional regularity in state judicial proceedings, that * * * the state so departed from constitutional requirements as to justify * * * intervention to protect the rights of the accused.' Darr v. Burford, supra, 339 U.S. at page 218, 70 S. Ct. at page 597; Johnson v. Zerbst, 304 U.S. 458, at page 468, 58 S. Ct. 1019, 82 L. Ed. 1461; Hawk v. Olson, 326 U.S. 271, at page 279, 66 S. Ct. 116, 90 L. Ed. 61.

 A hearing was held with relator present on March 11, 12, 13, 16, 17, 18, 19 and 20, 1954. Relator called 22 witnesses and offered 137 exhibits; respondent 11 witnesses, 6 exhibits. In addition we have before us the record of proceedings in the state and federal courts. *fn10"

 Although afforded opportunity by the court to testify relator declined to do so. N.T.-H. 614-617. Next day relator's counsel took exception to the questions propounded by the court, alleging relator was compelled to make statements he was not required to make by the United States Constitution. See Id. 723, 725. The exception is without merit. A habeas corpus hearing is not a criminal proceeding. See United States ex rel. Sholter v. Claudy, 3 Cir., 1953, 203 F.2d 805, 806, 807.

 About 11:25 P.M., December 22, 1947, David Darcy, 22, Harold Foster, 23, Harry Zeitz, 18, and Felix Capone, 16, arrived at the Feasterville Tavern located at the junction of Churchville-Newtown-Bustleton Roads, in the Village of Feasterville, Lower Southampton Township, Bucks County, Pennsylvania. *fn11" Darcy, Foster and Zeitz, each armed with a revolver, *fn12" entered the tavern while Capone acted as a 'lookout' in an automobile parked nearby with the engine running for a quick getaway. During the course of the robbery Darcy fired two shots and then engaged in a scuffle with Allen Hellerman and Edward Wunsch. During the scuffle Darcy, Zeitz and Foster fired shots. Hellerman fell to the floor, shot in the base of the neck and paralyzed in both lower extremities. *fn13" Two shots struck Wunsch causing arm and shoulder injuries. After taking the money from the cash register, Foster demanded that everyone produce their wallets. Darcy said he felt 'like shooting someone', and again, 'Where is the police? I feel like shooting some of them'. N.T.-T. 304. Darcy then threatened several patrons with his gun, lined them up against the wall with their hands up and demanded their watches. While Foster was 'covering' those present, Darcy and Zeitz reloaded their guns. After robbing the proprietor and some 18 patrons, with Hellerman lying on the floor 'apparently dead' they fired shots into the mouthpiece of the telephone, warned those present not to move for a long time, and departed, Foster returning momentarily as a warning and to wish them all a 'Merry Christmas'.

  Meanwhile, a Mrs. Leutwyler got out a rear door, ran across the road to the Buck Hotel and gave the alarm. At the hotel she found the bartender and two other persons, William Kelly and Frank J. Walter. They followed her outside and stood at the road intersection. While there Horace Patterson, a friend of Kelly, drove out of Churchville Road and stopped to talk with him and Walter. They noticed the automobile, with the engine running, standing in front of the Feasterville Tavern headed toward Newtown. Darcy, Foster and Zeitz ran from the tavern, got into the car and started off with Zeitz at the wheel. Just then, one of Zeitz' companions said: 'Someone is coming out the door'. Zeitz fired two shots, from a gun held in his left hand, from the front window of the driver's side in the direction of Kelly who was then some ten or twenty feet away. One of the bullets struck Kelly in the back of the head causing his death within two days.

 A half hour after Zeitz fired the shots, Darcy and his three companions committed another armed robbery of the proprietor and three or four patrons of the Deacon Inn near Penndel, eight miles away from the Feasterville Tavern. Darcy said, 'Stop the fooling around. This is a stickup. We just killed a couple of guys.' N.T.-T. 685. Capone, with gun in hand, said, 'You guys ought to try this sometime, it's fun.' N.T.-T. 688. Three shots were fired, two of them into the telephone booth; no one was injured. Upon their return to Philadelphia at 1:17 A.M. December 23, 1947, they were apprehended by Philadelphia police. *fn14"

 That same day all four made a statement to the police voluntarily admitting their participation in the Feasterville Tavern and Deacon Inn robberies (CX-69, N.T.-T. 814), and statements as to having committed seven other robberies since November 30, 1947, using the same automobile and guns and a plan, pattern and scheme similar to that used on December 22, 1947 -- three in New Jersey, four in the Bucks-Philadelphia Counties area. *fn15" Altogether seven patrons were shot or otherwise injured. *fn16"

  Because of Kelly's death on Wednesday, December 24, all four were held without bail December 26 by Magistrate William Hogan in Philadelphia. Meanwhile their transfer to the Bucks County authorities was delayed by weather conditions. At the hearing Lt. John Hanlon of the Philadelphia police testified as to their admissions. *fn17"

 Monday, January 5, 1948, all four were brought to Bucks County, Charged with murder and committed without bail by Justice of the Peace Horace A. Cooper at Langhorne to the Bucks County prison to await action by the Grand Jury February 9, 1948. The Commonwealth was represented by Assistant District Attorney Willard Curtin; Zeitz by I. Louis Rubin, Esq. Coroner's physician Dr. John C. Simpson testified as to the cause of death; Chief County Detective Anthony Russo as to signed statements by the defendants. The possible penalty was not mentioned. *fn18"

 Tuesday, January 27, 1948, a coroner's inquest, upon hearing testimony of Dr. John C. Simpson, Coroner's physician, decided that death was caused by a gun shot wound; Pvt. Kenneth R. Dane, Pennsylvania State Police, testified that Zeitz admitted firing two shots in Kelly's direction. The possible penalty was not mentioned. *fn19"

 January 29, 1948, transcript filed, Clerk of the Courts office, Ex. Nos. 1 and 4; Rel. Ex. No. 10, Oyer and Terminer Criminal Docket, p. 320; Ex. No. 115 Criminal Minutes, Docket 1948 to , p. 7; Ex. No. 137, Criminal Minutes, Docket 1943 to , p. 379.

 February 6, 1948, the District Attorney was reported as stating that the murder case was scheduled for action by the Grand Jury February 9, 1948, but the trial would in all probability be continued until the May term. *fn20"

 February 10, 1948, defendants being present (Zeitz represented by I. Louis Rubin, Esq., Darcy by Webster S. Achey, Esq., Capone by Frederick Smith, esq.) Judge Keller charged the Grand Jury for ten minutes and approved submitting the case to the Grand Jury for action. *fn21" Six witnesses appeared. 10:55 A.M. all four defendants were jointly indicted to No. 37 February Sessions 1948 for murder. Rel.Ex.No. 2.

 The District Attorney then moved for a continuance until the May Term because of the critical condition of Allen Hellerman (a Commonwealth witness) and because Harold Foster was without counsel. The Continuance was granted. Rel. Ex. Nos. 116, 137, p. 379.

 March 1, 1948, Webster S. Achey, Esq., on Darcy's behalf and Frederick Smith, Esq., for Capone, moved for a severance and separate trials. *fn22" It was reported *fn23" that the court commented 'Separate trials * * * will mean that it may take a year to dispose of the cases', and suggested to counsel the advisability of a combination trial as to all defendants, but counsel insisted on their legal rights Judge Keller granted the motions. Rel. Ex. Nos. 1, 4, 10, p. 320.

 March 3, 1948, Judge Boyer appointed Donald B. Smith, Esq. and William Freed, Esq., as counsel for Harold Foster. *fn24" Rel.Ex.No. 10, p. 321. Id. Ex. Nos. 1 and 4. Id. Ex. No. 45.

  There were only two attorneys in the District Attorney's office in Bucks County at that time, Edward G. Biester, and his assistant, Willard S. Curtin. While both were engaged in murder cases other cases could not be disposed of without difficulty. The murder cases had already been continued from the February term. Allen Hellerman, a witness, was in serious physical condition. The District Attorney decided in the interests of justice *fn25" that the cases should be tried as promptly as possible.

 At a conference in early March 1948 defense counsel were advised that the Foster-Zeitz case would be called first for trial; the Darcy case the following week; then Capone. May 17, 1948, the Capone case was continued; *fn26" the trial list prepared for the May term and counsel for Darcy again notified that the Darcy case would be called for trial the week following the Foster-Zeitz trial which was first on the list; the precise date of commencing the Darcy trial depending upon the date of completion of the Foster-Zeitz trial. *fn27" Subpoenas for the Darcy trial were sent out the end of the week of May 24 or early in the week of June 1.

 April 12, 1948, a venire was ordered, Rel. Ex. No. 8, for the empaneling and summoning of 120 jurors for service 'At the term * * * commencing on the 17 day of May * * * 1948 * * * to serve for the term (sic) thereof commencing on the 24 day of May * * * 1948'. Simultaneously Rel.Ex.No. 9 called for 120 '* * * to serve for the term (sic) * * * commencing on the 1 day of June 1948'. On the return of the writ the sheriff certified, Rel. Ex. Nos. 6 and 7, that the persons named were summoned to appear in court at 9:45 A.M. on May 24 and June 1, respectively. *fn28" Ordinarily the jurors, unless previously excused by Judge Keller, would report on the date directed. However, when it became apparent that the Foster-Zeitz trial would continue into the week of June 1, the court directed the sheriff's office to notify verbally all who had been summoned for jury duty as of Tuesday, June 1, 1948, not to appear until Monday, June 7, 1948. They were so notified and did not appear for duty until June 7 as directed. *fn29" , *fn30"

  In each trial jurors waiting in the Grand Jury room were called individually into the main court room; carefully and searchingly examined on voir dire. In each trial a fair and impartial jury of twelve and two alternates was obtained. *fn31" It took more time to select a jury in the Foster-Zeitz Case; each defendant had twenty peremptory challenges; *fn32" each a separate independent examination; two extra venires were called. *fn33" , *fn34" Foster and Zeitz each exercised sixteen peremptory challenges; the Commonwealth thirteen; challenged for cause or excused were thirty-seven with conscientious scruples, seventeen for illness, physical defects, home conditions, etc., thirteen clients of counsel engaged in the trial, seventeen for fixed opinions or bias. *fn35"

 Darcy exercised only ten peremptory challenges; the Commonwealth eight. Challenged for cause or excused were twenty-five with conscientious scruples; nine for illness, physical defects, home conditions, etc.; one client; fourteen for fixed opinions or bias. *fn36" *fn37" *fn38"

 Once accepted the jurors were kept together, during the trial, under the watchful care and supervision of court officials (in Foster-Zeitz 3, in Darcy 4 uniformed tipstaves). The jurors were not permitted to see any newspapers, hear any radio, or see any television program. They were kept free from any outside influence or contact.

 At no time during the trial was there any need to call for order. *fn39" There were no outbursts, no disturbances, no untoward incidents either in or outside the court room, in Doylestown, or elsewhere throughout the county. *fn40" None from December 22, 1947, down to or after the trial. At no time during either trial was the court room filled to capacity. *fn41" The attendance at the Foster-Zeitz was larger than at the Darcy trial. *fn42" The proceedings were reported in the daily press *fn43" and, on occasion, on the radio. *fn44" The reporting was factual, with an occasional descriptive word or phrase, and, on occasion, words of compassion or commendation. *fn45"

 We found only one instance of editorializing in the news columns. The editorials were stimulating, thought-provoking, instructive and fair comment. *fn46" The newspaper policy was one of giving the public the news, the facts to which they were entitled, having in mind the regular as well as the occasional reader. *fn47" Overall there was a sincere effort to put out a good newspaper, following time honored traditions, in the exercise of a constitutional freedom -- the Freedom of the Press.

 In neither case was there any testimony offered on defendant's side of the case. *fn48" Foster and Zeitz, although afforded an opportunity by the court, the jury being absent, declined to testify. Darcy did not testify.

 The strategy of respective trial counsel for the defense, other than Zeitz, was to show that their client did not fire the fatal shot and, as to all the defendants, to work toward and hope for keeping the punishment down to life imprisonment instead of the death penalty. *fn49"

 After the closing pleas of counsel *fn50" and the charge of the court on the law and the evidence, *fn51" a verdict of guilty of murder in the first degree fixing the penalty at death was returned by the jury in each case.

 After the verdict was recorded at 1:45 P.M. June 4, Judge Boyer was reported (Rel. Ex. No. 78, June 5) as having said to the jury: 'I don't see how you could, under the evidence, have reached any other verdict. Your verdict may have a very wholesome effect on other young men in all vicinities who may come to realize the seriousness of the folly in which so many young men indulge in these days. The only hope of stemming the tide of such crime by youth is to enforce the law which you have indicated by your decision.'

 To place these remarks in their proper context: A few moments earlier in the same court room Judge Keller in discharging the remainder of the May 24 panel commended them for their satisfactory verdicts, the last one of which was an acquittal on a charge of rape. An opinion expressed by Judge Boyer in his charge as to the proper penalty was reported on June 4, Rel. Ex. No. 76.

 In convictions for murder the sole, absolute and final responsibility for the verdict and its consequences rests with the jury. Here no question was raised as to identity or as to the defendant's participation in the robbery. The confessions were not repudiated; the testimony was uncontradicted. In the opinion of the Supreme Court of Pennsylvania Zeitz 'showed extreme callousness and brutality in his actions and his remarks during the course of the holdup'; Com. v. Zietz, 364 Pa. at page 296, 72 A.2d at page 283; the three defendants were described as 'bandits'. Id. 364 Pa. at page 296, 72 A.2d at page 284. And see opinion Chief Judge Biggs, 203 F.2d at page 419, 'The crime * * * admittedly committed was a brutal one, meriting severest moral condemnation * * *'; Com. v. Darcy, 362 Pa. at page 278, 66 A.2d at page 673, 'Under this evidence for a jury not to have found that these men were engaged in a common law robbery would have been perverse.'

 Monday, June 7, court was called at 10:00 A.M. with both judges presiding. After some miscellaneous business was disposed of, the defendant was arraigned, plead not guilty, and upon Judge Keller direction selection of a jury was commenced at 10:15 A.M. As to the voir dire examination, see supra and see opinion Maris J., supra, 203 F.2d at page 423; Resp. Ex. No. 5, Par. 13, 'Each juror * * * called * * * was carefully examined and cross examined * * * in order that the defendant might be tried by a jury free of bias, prejudice or preconceived opinion regarding the guilt or innocence of the accused * * *.'

 Defendant was represented by Webster S. Achey, Esq. and William M. Power, Esq., residents of Doylestown, engaged on defendant's behalf. Attorney Achey, at one time an Assistant United States Attorney for the Eastern District of Pennsylvania and engaged in the practice of the law for some thirty years, was one of the ablest and foremost active trial lawyers of Bucks County. His ability as such was recognized throughout the eastern section of Pennsylvania (see Resp. Ex. No. 5). In his charge the trial judge described him as 'able and learned'; the Supreme Court of Pennsylvania (367 Pa. at page 133, 79 A.2d at page 786,) as 'a highly reputable attorney of his own (Darcy's) choosing, eminently qualified from the standpoint of ability, experience and industry.' Attorney Power 'while a young man with less experience was a very good trial lawyer,' (Resp. Ex. No. 5).

 From early March defense counsel knew that the Darcy trial would follow that of Foster and Zeitz. At no time did they make any objection to this arrangement. We assume that they were aware of current local events *fn52" (cf. N.T.-T. 260-261, they knew about the venue statute; N.T.-T. 831, and Judge Boyer's remarks of June 4). They were also then confronted with the status of the law in Pennsylvania and the pronouncement of the Pennsylvania Supreme Court in Com. v. Flood, 1930, 302 Pa. 190, at page 196, 153 A. 152, at page 153, 'While defendant's right is clear, those of society are also clear; it is important that their interests should be protected against unnecessary delays. Persons accused of crimes should be brought to as speedy a trial as the exigencies of their cases demand, otherwise one of the benefits accruing to society will be lost or seriously diminished. Delays through unwarranted or unnecessary continuance should cease.' Com. v. Skawinski, 1934, 313 Pa. 453, 169 A. 895, denial of application for change of venue, Act of March 18, 1875, P.L. 30, 19 P.S. § 551, and of a motion for a continuance, Com. v. Riggs, 1934, 313 Pa. 457, 169 A. 896, quite like the present situation; Com. v. Smith, 1896, 185 Pa. 553, at pages 557, 558, 40 A. 83; Com. v. Buccieri, 1893, 153 Pa. 535, at page 545, 26 A. 228, at page 232, 'A very gross abuse of this discretion would have to appear.' The question of change of venue is one 'peculiarly within the sound judgment of the (trial) court', Id., 153 Pa. at page 546, 26 A. at page 232; Com. v. March, 1915, 248 Pa. 434, 438, 94 A. 142; Com. v. White, 1922, 271 Pa. 584, 589, 115 A. 870; Com. v. Schurtz, 1940, 337 Pa. 405, at pages 409, 410, 10 A.2d 378; Com. v. Shadduck, 1951, 168 Pa. Super. 376, 77 A.2d 673; and see Hart v. United States, 5 Cir., 1940, 112 F.2d 128, at page 131; Paschen v. United States, 7 Cir., 1934, 70 F.2d 491, at page 494,; cf. Com. v. Karmendi, 1937, 328 Pa. 321, at pages 337, 338-340, see 342 and particularly 349, 350, 351, 195 A. 62; and see our opinion in United States ex rel. Darcy v. Handy, supra, 97 F.Supp. 930, at page 935. The time and place to ascertain the existence of any disqualification was on the voir dire. See Id. 937; United States ex rel. Darcy v. Handy, 203 F.2d 407, at page 423; Com. v. Pasco, 1938, 332 Pa. 439, 2 A.2d 736; United States v. Rosenberg, 2 Cir., 1952, 200 F.2d 666, at pages 668, 669, particularly apposite; United States v. Moran, 2 Cir., 1952, 194 F.2d 623, at page 625; Allen v. United States, 7 Cir., 1925, 4 F.2d 688, at pages 695, 699; See Reynolds v. United States, 98 U.S. 145, 155, 156, 25 L. Ed. 244, 'The theory of the law is that a juror who has formed an opinion cannot be impartial. Every opinion which he may entertain need not necessarily have that effect. In these days of newspaper enterprise and universal education, every case of public interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely any one can be found among those best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect to its merits. * * * The finding of the trial court upon that issue ought not to be set aside by a reviewing court, unless the error is manifest. * * * jurors not unfrequently seek to excuse themselves on the ground of having formed an opinion, when, on examination, it turns out that no real disqualification exists. * * * The affirmative of the issue is upon the challenger.'

 As to what constitutes disqualification of a juror, in Pa., see Com. v. Zell and Herr, 81 Pa.Super. 145, at page 148, 'The presumptions are * * * that all the jurors selected were * * * sober, intelligent and judicious persons; * * * selected from the whole county * * * free from local influence or prejudice.' 'The law upon this subject has necessarily advanced with the changed circumstances. It has merely kept abreast of the times, and adapted itself to what the common judgment and common sense of the people see is essential to the proper administration of the criminal law. To return now to the old rule would exclude from the jurybox in many instances every man of average intelligence.' Rizzolo v. Com., 1889, 126 Pa. 54, at page 72, 17 A. 520, at page 521, 'Intelligent men receive impressions as to the nature and character of any transaction from what they hear and read of it, and it is not unusual to speak of these as opinions.' Com. v. Crossmire, 1893, 156 Pa. 304, at page 308, 27 A. 40, at page 41. 'We have held repeatedly * * * that the test of the competency of a juror in a capital case is his ability to render a verdict upon the evidence, and upon the evidence alone, uninfluenced by any opinion which he may have previously formed from newspapers or other reports of the crime. * * * In Allison v. Com. (99 Pa. 17), we held that, where a juror in a criminal case has formed an opinion from hearing or reading the evidence upon a former trial, he is incompetent, even if his opinion thus formed does not come up to the standard of a fixed opinion. But this rule does not apply where the juror has heard or read only fragmentary portions of the evidence; on the contrary his opinion must have been formed upon all the evidence in the former trial against the same prisoner before the disqualification referred to attaches; and it was distinctly ruled in the same case (Allison v. Com.) that hearing or reading the evidence upon a preliminary examination * * * was not a trial within the meaning of this rule. We need not discuss this question further. It is worn threadbare, and the law ought to be now well understood.' Com. v. Taylor, 129 Pa. 534, at pages 540, 541, 18 A. 558, 'Ignorance of everything except the facts testified to by witnesses in the case on trial is not a constitutionally required qualification of American jurors.' Com. v. Darcy, 362 Pa. at page 271, 66 A.2d at page 670. '* * * challenge of a juror for cause is addressed to the trial judge * * * much weight must be given to his judgment in passing upon it. In exercising his discretion as to the fitness of a juror to serve, he has the juror before him, and much latitude must be left to him; * * * the weight to be given to the answers of a juror when examined on his voir dire is not to be determined exclusively by his words as we read them in the printed record. * * * Nothing short of palpable error will justify a reversal of a trial judge in passing upon a challenge for cause.' Com. v. Sushinskie, 242 Pa. 406, at pages 412, 413, 89 A. 564, at page 565.

 Whether he should have moved for a continuance or a change of venue was obviously, as every lawyer knows, a matter of judgment to be decided in the light of the circumstances as measured by various considerations of trial policy. Defense counsel chose not to do so. What change any delay in the trial would have produced is pure speculation. In fact, in examining the witnesses in the Darcy trial, defense counsel on occasion referred to the testimony of the previous trial. See e.g., N.T.-T. 324-367. What of the wisdom of his choice? 'It is a familiar observation that cases are better tried from the 'side lines' by lawyers who would do no better in the heat of the conflict if they conducted the trial. And of course it is easy to condemn the exercise of counsel's judgment after the case is lost which would be praised if the case were won. But no lawyer can be expected to do more than exercise a reasonable skill which cannot be fairly judged by the result of the trial alone.' Com. v. Thompson, 367 Pa. 102, at page 109, 79 A.2d 401, at page 404.

 Assuming arguendo, there was some evidence of hysteria and prejudice, *fn53" see and cf. 203 F.2d at page 423, where Judge Maris sagely observed, '* * * a jury trial, just as every other human enterprise, is a fallible proceeding. Every juror who has ever been impaneled has been subject in greater or lesser degree to human passions and prejudices. These he is required to lay aside when he takes his oath as a juror. How successfully this is accomplished in practice has always been a matter of dispute but the deep and abiding place which the jury system has achieved in our institutions attests the fact that the standard of impartiality has normally been attained to a degree which is satisfactory to the community.' And see Com. v. Buccieri, supra, 153 Pa. at page 546, 26 A. at page 233, 'Indignation because of the cruelty of the deed, there doubtless was; it would be strange if such were not the case in a law-abiding community; but there is nothing which convinces us of the existence of such passion or prejudice as would prevent the twelve 'sober, intelligent, and judicious' jurors who were sworn to try the issue from rendering a true verdict on the evidence.' There was some testimony as to some people being shocked; some indignant; other testimony that some people in certain parts of the county, particularly in the Feasterville area, not many overall, had ideas as to what the punishment should be. In this connection it must be remembered that Bucks County was one of the three original counties established at the first settlement of the province of Pennsylvania in 1682 (land area 617 sq. mi.; pop. 1950 -- 144,620, 1940 -- 107,715; pop. per sq. mi. 234.4; urban 24.1% 1950, 29.4% 1940. Pa.Manual, Vol. 91, 1953-1954, pp. 994, 997).

 Defendant's counsel apparently made a deliberate choice not to seek delay or a change of venue. Many reasons could be suggested for their decision. We will not indulge in speculation. At all events there was a waiver of any right they may have had.

 '* * * it * * * is for the Pennsylvania courts to say under its law what duty or discretion the court may have had. Nothing in the record impeaches the fairness and temperateness with which the trial judge (and we add the District Attorney) approached his task. His action has been affirmed by the highest court of the Commonwealth. We are not at liberty to conjecture that the trial court acted under an interpretation of the state law different from that which we might adopt and then set up our own interpretation as a basis for declaring that due process has been denied. We cannot treat a mere error of state law, if one occurred, as a denial of due process; otherwise, every erroneous decision by a state court on state law would come here as a federal constitutional question.' Gryger v. Burke, 1948, 334 U.S. 728, at page 731, 68 S. Ct. 1256, at page 1257, 92 L. Ed. 1683.

  'If the result of the adjudicatory process is not to be set at naught, it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality.' Adams. v. United States ex rel. McCann, 317 U.S. 269, at page 281, 63 S. Ct. 236, at page 242, 87 L. Ed. 268. This the relator has not done.

 Finally as to Judge Boyer's asserted visits to the court room. (Hon. Calvin S. Boyer was for some years District Attorney for Bucks County; later United States Attorney for the Eastern District of Pennsylvania, and from June 21, 1930 to sometime in 1949 additional law judge of the several courts of Bucks County. Rel. Ex. No. 124, p. 754). From the time of the occurrence and throughout the Foster-Zeitz trial Judge Boyer's conduct was fair and impartial. In fact, the only time his name appears in connection with the indictment was on March 1 when the court suggested the possibility of a joint trial; again on March 3 when Judge Boyer promptly complied with a request therefor naming two lawyers to represent Harold Foster. On the question of admissibility of evidence of other offenses Judge Boyer restricted the Commonwealth to a purpose narrower than that approved by the Pennsylvania Supreme Court on appeal.

 By long established tradition in Bucks County, each morning and afternoon at the opening of court both judges take the bench to entertain motions and other miscellaneous matters in the Criminal, Common Pleas -- law and equity -- and Orphans Court. Once this work is completed, one of the judges, if engaged in a trial in that court room, remains on the bench; the other judge leaving to perform duties in another court room or in chambers. The practice used in many Pennsylvania Courts, N.T.-H. 365, was continued daily no matter what court was in session or the nature of the trial, see Rel. Ex. No. 115, p. 8; not on June 4 when Judge Boyer charged the jury; and, according to Rel. Ex. No. 116, not on June 8 and 10.

 The criminal docket, Rel.Ex. No. 10, a record of individual trials, shows both judges on the bench at 10:00 A.M. May 24 (p. 339); 9:30 A.M. June 2(p. 348); 10:00 A.M. June 7 (p. 352). The court reporter's notes of testimony show only one instance of Judge Boyer taking any part whatsoever in the Darcy trial, i.e., during a sidebar discussion out of the hearing of the jury shortly after court convened on Saturday morning, June 12 (N.T. 827). Under consideration was a difficult question of law on the admissibility of evidence of other offenses (see Resp. Ex. No. 5, par. 20) in view of the Act of July 3, 1947, P.L. 1239, 19 P.S.Pa. § 711 note. Judge Boyer indicated his thinking on the matter. Upon objection by counsel *fn54" the discussion ended; Judge Keller ruled; Judge Boyer left the bench shortly after and did not return during the remainder of the trial. *fn55" It may be that during the Foster-Zeitz trial Judge Keller shortly after 9:30 A.M. June 2 (cf. Rel. Ex. No. 1, N.T. 1194) listened to but did not express any opinion during a similar discussion. *fn56"

 Honorable Hiram H. Keller, president judge since April 30, 1930, who presided with eminent fairness throughout the trial, has certified (Resp. Ex. No. 5, par. 20-21) that after the miscellaneous business was completed, 'On several occasions * * * Judge Boyer remained for brief periods while evidence was presented * * *', and that with the exception of the incident reported at N.T.-T. 831, 'At no other time, during the course of the trial, did Judge Boyer assist, volunteer to assist, or make any suggestions to or otherwise aid the undersigned in the trial of this case.'

 The District Attorney, now Judge Biester, testified, and we find as a fact, that Judge Boyer did not at any time during the Darcy trial assist, attempt to assist, make any suggestion to or in any other manner aid the Commonwealth in the prosecution of the case against David Darcy; that Judge Boyer did not pass any note or message of any kind to the District Attorney in connection with the trial for the use of the District Attorney or Judge Keller.

 On several occasions during the Darcy trial -- not on Friday evening or during the charge of the court on Monday, June 14 -- Judge Boyer sat for brief intervals on a chair just inside the court room door from the judges' chambers, apparently listening to the proceedings. On several occasions during the Foster-Zeitz trial, Judge Keller sat for short intervals in the same area; (the judges in Bucks County did not at that time wear robes).

 During the Darcy trial Judge Boyer did not at any time sit at or near the table reserved for the press; at or near the table reserved for the District Attorney; at no time time did Judge Boyer sit on a chair next to or anywhere near a chair occupied by the District Attorney.

 Throughout the trial, the only chairs occupied by the District Attorney or his assistant were at the table reserved for that purpose, or in chairs immediately in front of the table reserved for the press.

 At no time other than that noted in N.T.-T. 830 did Judge Boyer take any part whatsoever in the proceedings of the Darcy trial. *fn57"

 Friday, June 12, Judge Boyer in sentencing Robert White, 18, one of three Philadelphia youths, for stealing a car radio, to four to twelve months, was reported (Rel. Ex. No. 94) to have said: 'We don't propose to nail all our property fast here in Bucks County just because thieves from Philadelphia want to pick up everything which isn't being watched * * * What business did you have to come up here in the first place? * * * So far as your testimony is concerned, you have not shown any excuse at all to come out of Philadelphia to Bucks County. * * * Have you heard what's going on downstairs? Do you want to end up like that?' -- "I'd like to have another chance', said the youth whose mother described him as a 'good boy'.' 'We in Bucks County are tired of you Philadelphians who don't know how to behave. We have to bear the expense and we propose to stop it.' Said Judge Boyer, 'Unless you get an entirely different idea or conception of what belongs to you and respect for other people's property you will have a sorry life.' If one recalls the arrest on February 16 of six young philadelphians on serious charges (see note 46, supra, 130 F.Supp. 287, 288), making ten youngsters in the County Prison at that time, and the arrest of the three in question on June 5, Judge Boyer's remarks may be appraised in a different light than one of condemnation. The sentence was moderate under the circumstances. At all events the sentence was passed and the remarks made in a court room other than that in which the Darcy trial was progressing. The jurors in the Darcy trial knew nothing whatsoever as to the sentence and the remarks. What occurred could not possibly have, and did not in fact have, any effect whatsoever on the outcome of the Darcy trial. It did not reflect in any manner hysteria or prejudice on Judge Boyer's part toward any of the four defendant's charged with murder.

 After the verdict in the Darcy trial was recorded and the jurors dismissed with the thanks of the court, there was no display of any kind in or outside the court room. *fn58" It was reported (Rel.Ex. No. 102) that as the spectators left the court house there was widespread comment approving the verdict and the efficient manner in which the Commonwealth had prepared its case; 'They seemed to 'pity the parents; not the defendants' in this case'.

 The respondent moves to dismiss on the ground that the evidence is insufficient in quality and quantity to support the allegations of the petition.

 After 'in a sense' traversing the highways and byways of Bucks County; spending long hours in its newspaper columns, and on the editorial and other pages; listening to reports as to the sentiments of its people in Doylestown and throughout the county (see amendment of the petition, N.T.-H. 393), fully aware of its long tradition as a law abiding community; pondering on the results in the light of Section IX of Article 1 of the Pennsylvania Constitution and Section I of the Fourteenth Amendment of the United States Constitution, we have fully and completely complied with the mandate of the Court of Appeals. With what result? Only to be more confirmed in our conclusions expressed in our opinion on May 17, 1951, that the defendant was afforded in form and in substance a fair and impartial trial in the Court of Oyer and Terminer in Bucks County, Pennsylvania, in June 1948; that the allegations of the petition for habeas corpus are without support in the record and in the evidence; that the defendant was afforded due process of law under the Constitution of Pennsylvania and the Constitution of the United States.

 There is nothing here akin to Shepherd v. Florida, 341 U.S. 50, 51, 71 S. Ct. 549, 95 L. Ed. 740; Frank v. Magnum, 237 U.S. 309, at page 335, 35 S. Ct. 582, 59 L. Ed. 969; Moore v. Dempsey 261 U.S. 86, 43 S. Ct. 256, 67 L. Ed. 543; see Ashe v. United States ex rel. Valotta, 270 U.S. 424, 426, 46 S. Ct. 333, 70 L. Ed. 662, and see Stroble v. California, 343 U.S. 181, at pages 193, 194, 72 S. Ct. 599, 96 L. Ed. 872; Buchalter v. New York, 319 U.S. 427, at page 430, 63 S. Ct. 1129, 87 L. Ed. 1492; United States v. Rosenberg, 2 Cir., 200 F.2d 666.

 As Mr. Justice Cardozo said in Snyder v. Massachusetts, 291 U.S. 97, at page 122, 54 S. Ct. 330, at page 338, 78 L. Ed. 674, 'But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true. * * * There is danger that the criminal law will be brought into contempt -- that discredit will even touch the great immunities assured by the Fourteenth Amendment -- if gossamer possibilities of prejudice to a defendant are to nullify a sentence pronounced by a court of competent jurisdiction in obedience to local law, and set the guilty free.'

 The findings of fact and conclusions of law submitted by relator and respondent as are in agreement with this opinion are hereby adopted and affirmed. Such findings of fact and conclusions of law submitted by the relator and respondent as are in disagreement with our opinion are hereby denied.

 The petition for a writ of habeas corpus will therefore be denied; our stay order heretofore entered on November 5, 1953, will be terminated and come to an end.

 The Commonwealth of Pennsylvania so far as this court is concerned is free to pursue the proper legal processes to see that the sentence and judgment of the Court of Oyer and Terminer of Bucks County be carried out.

 WATSON, C.J., joins in all the views expressed in this opinion.


 As to respondent's request for findings of fact: Affirmed -- No. 1, ante, p. 262; No. 2, ante, pp. 261-262; No. 3, ante, p. 263, proper date May 27; No. 4, ante, p. 262, see Slaughter incident, note 29; No. 5, ante, p. 263, note 34; No. 6, ante, p. 263; Nos. 8, 9, 10, 11, 12, 13, ante, p. 264; No. 14 as modified, ante, pp. 264-266; Nos. 15 and 16, ante, p. 264; No. 17; No. 18 as modified, ante, pp. 272, 275, 276; No. 19, ante, p. 276; No. 20, ante, p. 275; No. 21, ante, pp. 276, -- ; No. 22, ante, p. 276; No. 23, ante, p. 276. Denied -- No. 7 as stated, ante, p. 263.

 As to respondent's request for conclusions of law: Nos. 1 to 6 inclusive are denied; No. 7 affirmed; No. 8 affirmed as modified.

 As to relator's request for findings of fact: No. 1 affirmed as amplified, ante, pp. 259, 260; Nos. 2, 3, 4, denied, ante, p. 266; Nos. 5, 6, affirmed as modified, ante, p. 266; Nos. 7, 8, affirmed, ante, p. 266; No. 9, denied; No. 10 denied, ante, pp. 266-269; No. 10a, affirmed as modified and in context; (b) affirmed in context; (c) affirmed in context, ante, pp. 267-269 et seq., notes 46 and 47; (d) affirmed as to heading, details of crime not repeated; (e) affirmed ante, p. 267; (f) affirmed in part, denied as to details; (g) denied as stated, ante, p. 267; (h) denied as stated, affirmed as to quotes; (i) affirmed in context; (j) denied as stated, item misquoted, ante, p. 269, note 47; (k) denied as stated, ante, p. 269; (l) denied, ante, p. 269; (m) denied as stated; (n) Ex. 31 denied as stated, title misquoted, ante, p. 267, affirmed as to Ex. 30; (o) possibly misleading interpretation, defendants cases not mentioned; (p) denied, misleading and misquoted, correct as to heading of news item, ante, p. 267; (q) denied as stated; (r) denied as stated, ante, p. 267, affirmed as to Ex. 39; (s) misquoted, see ante, pp. 267, 268; (t) denied, ante, p. 268; (u) denied; (v) a twelve line news item; (w) affirmed, ante, p. 268; (x) conclusions denied; (y) misquoted, ante, p. 268; (z) denied, ante, p. 268; (aa)(cc)(dd) names of jurors only; (bb) substantially correct, ante, p. 262, note 27; No. 11 denied as stated, see ante, p. 266 as to coverage; No. 12 misquoted in part, ante, p. 271; No. 13, quotes correct, one juror selected before noon; No. 14 denied, ante, p. 266, note 44; No. 15 denied, misquoted, ante, p. 266, note 44; No. 16 denied; Nos. 17, 18 denied, ante, pp. 264, 265, note 40; No. 19 denied, ante, p. 265; No. 20, denied; Nos. 21, 21a denied, ante, p. 264, note 39; No. 22 denied, ante, pp. 261, 275; No. 23 affirmed; No. 24, Ex. 51 misquoted, Ex. Nos. 55, 58 affirmed, but see ante, p. 262, note 27; No. 25 denied as stated; No. 26 denied as stated, ante, p. 269, note 47; No. 27 denied; Nos. 28, 29, affirmed; Nos. 30, 31 denied, ante, p. 262; No. 32 affirmed, ante, p. 263, note 33; No. 33 denied; No. 34 denied, ante, p. 275; No. 35 denied, ante, pp. 261, 275; No. 36 affirmed, ante, p. 271 et seq.; No. 37 denied as stated ante, p. 276; No. 38 denied, see ante, p. 275 et seq.; No. 39 denied, see ante, p. 276, note 57; No. 39a denied, ante, p. 276; No. 40 denied, ante, pp. 275-276 et seq.; No. 41 denied, ante, p. 275; Nos. 42, 43 denied, ante, p. 276; No. 44 denied, ante, pp. 276, 271; Nos. 45, 46 denied, ante, p. 275 et seq.; No. 47 denied, ante, p. 275 et seq., and see ante, p. 269, note 46; No. 48 denied, ante, pp. 264 and 265, note 40; No. 49 denied, ante, p. 263, notes 33, 34; No. 50 affirmed, ante, p. 263, note 31; Nos. 51, 52, 53 denied, ante, pp. 263, 272, 273; No. 54, 54a, 54b denied.

 As to relator's request for conclusions of law; Nos. 1, 2, 3 denied; No. 4 denied as stated; Nos. 5, 6, 7, 8, 9, 10 denied.

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