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UNITED STATES EX REL. LOWRY v. DAY

February 3, 1956

UNITED STATES of America ex rel. Walter John LOWRY
v.
Charles DAY, Warden, Eastern State Penitentiary, Graterford, Pennsylvania



The opinion of the court was delivered by: KRAFT

This petition for writ of habeas corpus, to which the affidavit was taken August 31, 1955, was filed December 1, 1955. Since the petition did not provide sufficient information upon which to make decision, petitioner's counsel was, on December 15, 1955, orally directed to submit a memorandum of authorities on which reliance was had, together with a copy, if available, of the record printed on petitioner's appeal to the Supreme Court of Pennsylvania. Petitioner's counsel having failed to comply with the oral direction, a written direction to the same effect was sent petitioner's counsel on January 11, 1956. A letter was received from counsel January 16 promising prompt compliance and on January 23 another letter from counsel was received enclosing a copy of petitioner's petition for writ of certiorari to the Supreme Court of the United States. Neither the requested memorandum of authorities nor the copy of the record on petitioner's appeal to the Supreme Court has yet been furnished this Court. These facts have delayed until now disposition of the petition.

Petitioner was found guilty of murder of the first degree by a jury which fixed the penalty at life imprisonment. After sentence, petitioner appealed to the Supreme Court of Pennsylvania which affirmed the judgment and sentence. *fn1" Thereafter the Supreme Court of the United States denied petitioner's petition for writ of certiorari. *fn2" Both the appeal and the application for certiorari raised the same question presented by this habeas corpus petition.

 At petitioner's trial evidence of his conviction of prior unrelated crimes was admitted for the limited purpose of assisting the jury to fix the penalty, if the jury should determine from the evidence, excluding that of prior convictions, that petitioner was guilty of first degree murder. The duty of fixing the penalty in such case is imposed on the jury by statute. *fn3" Though many eminent jurists have doubted the wisdom of admitting evidence of conviction of prior unrelated crimes in a murder trial as an aid to the jury in determining the penalty upon a conviction of murder of the first degree, the Pennsylvania Supreme Court has repeatedly held such evidence to be admissible for that limited purpose *fn4" under the statute now in effect and its predecessor. *fn5" Despite criticism and suggestions of suitable alternatives no amendatory legislation has been enacted nor has the Supreme Court held the admission of such evidence, so limited, to be a denial of due process.

 Petitioner's position, analyzed in its true light, is that if the district attorney, in his closing argument, had requested the death penalty or had remained silent about penalty and if the trial judge lift the penalty to the jury, irrespective of the views of the district attorney, no right of petitioner would have been violated, but that the district attorney's recommendation of life imprisonment in his closing argument and the judge's instructions limiting the penalty rendered inadmissible the previously admitted evidence of prior crimes and so deprived petitioner of his rights. The rights of the petitioner were adequately protected by the careful instructions of the trial judge limiting the effect of the evidence of prior crimes. The beneficial limiting instruction on penalty, to which petitioner was not entitled, neither diminished the adequacy of the protection afforded nor created the necessity for further or different protection of petitioner's rights.

 Now, February 3, 1956 it is ordered that petition be and ...


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