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February 28, 1958

UNITED STATES of America ex rel. James Morris FLETCHER, Petitioner,
Angelo C. CAVELL, Warden

The opinion of the court was delivered by: GOURLEY GOURLEY

This is a petition for writ of habeas corpus in which petitioner, convicted in the State court of first degree murder and sentenced on February 14, 1956 to life imprisonment, alleges denial of due process under the Constitution of the United States for the reason that one member of the jury was a distant relative of the victim, and the other a relative of the prosecuting county detective, who was also a witness. The defendant did not take the witness stand.

Appeal from said sentence was taken to the Supreme Court of Pennsylvania which affirmed the conviction, Commonwealth v. Fletcher, 387 Pa. 602, 128 A.2d 897. Application to the United States Supreme Court for writ of certiorari was duly made, and refused on June 10, 1957, 354 U.S. 913, 77 S. Ct. 1300, 1 L. Ed. 2d 1429.

 Although the petition, prepared by petitioner without the assistance of counsel, raises a number of questions, it was stipulated at the hearing by petitioner's recently acquired able counsel and the District Attorney that only the issue of relationship on the part of the two jurors was ripe for consideration. It was conceded by the District Attorney, both in his answer and at hearing, that as to this phase of the case petitioner had exhausted his remedies.

 The court conducted a most thorough hearing in regard to the two jurors whose presence on the jury petitioner contends deprived him of due process of law.

 Because the argument and the authorities submitted by defendant counsel and the District Attorney in their respective briefs failed to lend help in resolving this most vital and crucial issue as it relates to juror Stephenson, I shall, at this stage, proceed with a preliminary opinion in order to invoke the services not only of the parties but also of the Attorney General of the Commonwealth of Pennsylvania to assist in its solution.

 The entire record of the state proceeding was incorporated into the record of hearing before this court. The facts which appear to be undisputed, are as follows:

 At the selection of the jury, Paul E. Stephenson called for examination on voir dire, testified that he was 'perfectly impartial' as between the Commonwealth and the Defendant, that he was free of prejudice or bias, and that he could render a verdict solely from the evidence produced on the witness stand. He was then accepted by both sides, sworn and seated in the box as Juror #1, and subsequently was chosen foreman of the jury.

 While the selection of the jury continued and before all jurors had been selected and each member of the jury sworn, *fn1" it came to the attention of counsel for the defendant that Juror Stephenson was the son-in-law of Paul Thomas, the County Detective who had instigated and presented the criminal proceeding, *fn2" and that Juror Barnhart was a distant relative of the deceased. Counsel for petitioner then requested leave to challenge both of these jurors for cause, or, if that was refused, then peremptorily. The court reserved a ruling on this request, but thereafter refused the challenges. The record does not reflect any hearing by the trial judge as to the request of defendant counsel. At the time when the request to challenge was made, defendant had twelve unused peremptory challenges.

 At the hearing in this court Juror Stephenson testified that he was the son-in-law of Paul Thomas, the county detective, having married Ruth Ellen Thomas on August 24, 1947. He further testified that Thomas had been Chief of Police in Waynesburg, Pennsylvania for many years and had been appointed County Detective a couple of years before the trial of defendant's case. He stated that he was on friendly terms with his father-in-law, and from January 1951 ate dinner regularly at Mr. Thomas' house four or five times a week. He knew at the time that his father-in-law was working on the case, but never discussed it with him.

 Scott Marshall, a brother of Mrs. Nellie Barnhart, was called to explain that her failure to appear in court resulted from the fact that she is seriously ill and not expected to live. Questioned as to his exact relationship to the deceased victim, Tanner, Marshall testified that his grandmother, Frances Marshall was the sister of Tanner's greatgrandmother, Josine Marshall Phillips. Counsel have stipulated that the relationship was in the 7th degree, as determined by the civil law, and in the 5th degree under canon law.

 In view of the extreme remoteness of relationship to the victim on the part of juror Barnhart, who apparently never maintained any contact with the victim or his family during his lifetime, and in all probability was not even aware of such existing relationship, and in view of the juror's oath that her deliberation and verdict would be based solely on the evidence presented in the case, it is my considered judgment that retention of juror Barnhart did not result in a denial of due process or a fair trial.

 The circumstances relative to juror Stephenson present a most difficult ...

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