as the trial was not continued. There is no doubt that the publicity was unfavorable to relator, but in my opinion, from the record, it did not attain that degree of prejudice which would render the trial void because lacking in fundamental fairness.
Moreover, the record indicates that as to the publicity question, state remedies were not exhausted.
Following conviction the publicity question was urged upon the court en banc as violative of the due process clause of the Constitution. But on appeal to the Superior Court, in the Statement of the Questions Involved,
there is no suggestion that this issue was involved. Although relator urges that the Superior Court considered the question because unfavorable publicity was mentioned in the 'Conclusion' of relator's brief, it is noteworthy that the word 'publicity' does not appear in the opinion of the Superior Court. The Court did conclude (176 Pa.Super. 80, 106 A.2d 889):
'There was no abuse of discretion in the consolidation of the cases for trial and there was no denial of due process on other grounds in these cases. The jurors were examined on their voir dire, and an impartial jury when sworn was sequestered, for their protection from outside influences.'
Relator then petitioned the Supreme Court of Pennsylvania for an allocatur which was denied. This petition did not mention the pre-trial publicity as constituting a federal constitutional question.
In his application for certiorari to the Supreme Court of the United States he affirmatively avers that his constitutional rights were violated by the pre-trial publicity.
On this showing it is our conclusion that relator did not exhaust his state remedies on the publicity question. Assuming, without deciding, that the Superior Court considered and decided it, omitting to bring the matter to the attention of the Supreme Court of Pennsylvania is, I think, a fatal omission.
Finally relator urges that the manner in which the trial was conducted resulted in denial of due process. He argues that the proceedings 'in the state courts were conducted with unseemly haste * * *'; the Bills of Particulars were inaccurately prepared; pre-trial motions were argued before the court en banc two days before the trial, and, while the motions were refused summarily, it was not until after trial that the opinion was filed, to relator's prejudice; the trial was speeded up due to the imminence of Memorial Day; the jury was irritated by being sequestered; the jury was permitted to read newspapers with the trial articles cut out; the jury was confused as shown by its verdicts. It is evident from a mere reading of these allegations that most of them afford no basis for the issuance of a writ of habeas corpus. All of them were proper for consideration by the Superior Court on direct review of relator's conviction and no doubt were considered by that court.
Nor does the whole situation -- all the facts alleged and argued -- indicate that relator had an unfair trial or is confined in violation of any of his federal constitutional rights. I, therefore, find no basis in the state record which would justify the discharge of the prisoner. Accordingly, the writ of habeas corpus should be discharged and the relator remanded to the custody of Warden Frank C. Johnston.
The parties are requested to agree upon and submit the appropriate order to be entered within 10 days of the filing of this opinion.