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November 25, 1957

UNITED STATES of America ex rel. Cleveland THOMPSON
Grant F. PRICE, Warden Allegheny County Jail, Pittsburgh, Pennsylvania

The opinion of the court was delivered by: MARSH

In May, 1956, relator was convicted for the second time on a murder indictment and sentenced to death in the Court of Oyer & Terminer of Allegheny County, Pennsylvania. *fn1" He now petitions for a writ of habeas corpus, asserting that he was deprived of the due process guaranteed to him under the Constitution of the United States, Const. Amend. 14 for the reason that the trial court admitted into evidence the record of three court martial convictions during the Commonwealth's case in chief.

He contends that admitting the court martial record of crimes disassociated with that for which he was on trial was fundamentally unfair. Further, he prays for a hearing to take testimony in order to institute a collateral attack on the court martial proceedings.

 A rule was issued on the Commonwealth to show cause why the writ should not be granted and a hearing held to enable relator to introduce evidence.

 At the hearing on the rule the record of relator's trial and the proceedings in the state courts were submitted. The trial record disclosed that the record of the court martial was admitted in evidence over relator's objections, but the penalties were not admitted. *fn2"

 It appears that in 1942, while relator was in England as a member of the armed forces, he had pleaded guilty to one count of felonious shooting with intent to kill and had been convicted of two other counts of shooting and wounding fellow soldiers with a rifle.

 The record also disclosed that by agreement of relator's counsel, an extract of his testimony taken at the first trial on this same indictment was read to the jury. In that testimony he confirmed the fact that in 1942 he had been court martialled in England and disciplined for shooting three soldiers.

 It also disclosed that another prior conviction was admitted in evidence without objection. That conviction was obtained in a court of record, namely, in the Criminal Court of Allegheny County, for felonious assault committed in 1940.

 Since the Act of May 14, 1925, P.L. 759, now part of the Criminal Code of Pennsylvania, 18 Penna.Purdon's Stat. ยง 4701, a Pennsylvania jury is empowered to fix the penalty in first degree murder. Under the Pennsylvania decisions, admissions of prior offenses, pleas of guilt, and convictions of felonies have been admissible in evidence '* * * to enable the jury to know what manner of man the defendant was, if they should find him guilty of murder of the first degree * * *.' Commonwealth v. Dague, 1930, 302 Pa. 13, 152 A. 839; see also Commonwealth v. Kurutz, 1933, 312 Pa. 343, 168 A. 28; Commonwealth v. Stabinsky, 1933, 313 Pa. 231, 169 A. 439; Commonwealth v. Rose, 1937, 327 Pa. 220, 193 A. 17. This limited purpose was carefully explained to the jury by the trial judge.

 Upon relator's appeal from his second conviction, the Supreme Court of Pennsylvania upheld the admissibility of the court martial record as a proper aid to the jury in fixing the penalty. Commonwealth v. Thompson, 389 Pa. 382, 133 A.2d 207.

 At the argument on the rule, the Commonwealth contended that in the light of the trial record and proceedings in the state courts, pure questions of law had been presented by relator's petition for the writ, and that a hearing would be time-consuming nd superfluous.

 Upon inquiry, counsel for the relator stated that he desired a hearing in order to introduce: (1) the transcript of the court martial, which he does not now have; (2) the testimony of Thompson concerning the events that transpired at the court martial; (3) the testimony of the three soldier victims who had allegedly been shot and wounded by relator in England and who had testified before the court martial; (4) the testimony of the officer who defended relator at the court martial; (5) testimony of experts on court martials, in order to show that a court martial is not a court of record but is only an administrative tribunal whose findings are rendered without due process and not entitled to recognition in courts of law.

 It is the conclusion of the court that the petition for the writ should be dismissed.

 The introduction in evidence of the prior conviction by court martial, over relator's objection, as distinguished from the prior conviction by a court of record, to which he did not object, presents a question of admissibility of evidence under state law, which, without more, is not a federal question. United States ex rel. Langer v. Ragen, 7 Cir., 1956, 237 F.2d 827. Especially do we think a federal court may not review the correctness of the ruling of the trial court on this question, when it has been affirmed on appeal by the highest state court. *fn3"

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