Before MARIS, GOODRICH and HASTIE, Circuit Judges.
The relator, Cleveland Thompson, was convicted in January, 1950, by a jury in a Pennsylvania court of the murder of Wallace Russell, who died as a result of wounds received in a shooting which occurred on September 13, 1949, in a drinking place known as the Barbary Coast Club in Pittsburgh, Pennsylvania. From a judgment imposing sentence of death he appealed to the Supreme Court of Pennsylvania which affirmed the judgment and sentence. Commonwealth v. Thompson, 1951, 367 Pa. 102, 79 A.2d 401, certiorari denied 342 U.S. 835, 72 S. Ct. 58, 96 L. Ed. 631. Thereafter he repeatedly sought writs of habeas corpus upon one of which he ultimately secured a new trial.*fn1
At the relator's second trial in May, 1956 he did not testify in his own defense. In the course of that trial the Commonwealth offered in evidence a record indicating that the relator, under the alias of Robert Patterson, had been convicted of felonious assault and sentenced to the Allegheny County Work House for a term of 6 to 18 months. No objection was made by the relator to the admission of the record of this conviction. The Commonwealth also offered in evidence the record of a general court-martial, dated May 23, 1943, convened at Whittington Barracks in England, which was admitted over the objection of the relator. This record indicated that the relator had pleaded guilty to one specification of felonious shooting with intent to kill and had been found guilty under two other specifications of shooting and wounding fellow soldiers. During the relator's second trial, by agreement of counsel, an extract of his testimony taken at his first trial was read to the jury. In that testimony he confirmed the fact that in 1942, when a member of the armed forces, he had been court-martialed in England and disciplined. The jury for the second time found the relator guilty of murder in the first degree and again fixed the penalty at death. Judgment was thereupon entered sentencing him to death. On appeal to the Supreme Court of Pennsylvania the relator assigned as error the reception into evidence of his court-martial record but the Supreme Court held that it was properly admitted as an aid to the jury in fixing the penalty. One judge dissented. Commonwealth v. Thompson, 1957, 389 Pa. 382, 133 A.2d 207, certiorari denied 1957, 355 U.S. 849, 78 S. Ct. 77, 2 L. Ed. 2d 59.
The relator thereafter petitioned the District Court for the Western District of Pennsylvania for a writ of habeas corpus, asserting that the judgment of the Pennsylvania court was void because he had been deprived of due process of law, in violation of the Fourteenth Amendment, by the admission into evidence of the record of the court-martial proceedings during the Commonwealth's case-in-chief. The district court after a hearing dismissed the petition, holding it to be devoid of substantial merit. 156 F.Supp. 578. This appeal followed.
The relator's contention here is that he was denied a fair trial when evidence of offenses not connected with the alleged murder for which he was being tried was received and put before the jury. The Commonwealth says that this evidence did not deprive the relator of a fair trial since it was presented to the jury under proper instructions for the limited purpose only of assisting the jury to fix the relator's punishment, which it was their duty to do in the event that they found him guilty of murder in the first degree.
Under the law of Pennsylvania the jury has the duty of determining the penalty when they convict a defendant of first degree murder. The second paragraph of Section 701 of the Penal Code of 1939 provides:
"Whoever is convicted of the crime of murder of the first degree is guilty of a felony and shall be sentenced to suffer death in the manner provided by law, or to undergo imprisonment for life, at the discretion of the jury trying the case, which shall fix the penalty by its verdict. The court shall impose the sentence so fixed, as in other cases. * * *" 18 P.S.(Pa.) § 4701.
The precursor of this statute, the Act of May 14, 1925, P.L. 759, provided:
"That every person convicted of the crime of murder of the first degree shall be sentenced to suffer death in the manner provided by law, or to undergo imprisonment for life, at the discretion of the jury trying the case, which shall fix the penalty by its verdict."
The Act of 1925 was interpreted by the Supreme Court of Pennsylvania to permit the admission of evidence of prior convictions solely for the purpose of enabling the jury, after it has found the accused guilty of first degree murder, to know what manner of man he is and whether he is entitled to mercy when they undertake their task of deciding what penalty should be imposed upon him.*fn2
The relator's principal contention on this appeal is that to admit into evidence an unrelated criminal record of the defendant on the theory that the jury will disregard this knowledge when determining his guilt, and yet use it later when determining his punishment, results in such fundamental unfairness that it is a denial of due process of law. He says that the admission into evidence of his prior convictions does violence to the common-law rule which disallows evidence of a defendant's evil character to establish the probability of his guilt, and that the evidence of his prior convictions undoubtedly affected the general verdict of guilty and thus militated against him.
Prior to the enactment of the Act of May 14, 1925 a conviction of first degree murder in Pennsylvania always called for the death penalty. That Act, as we have seen, established an additional penalty, life imprisonment, and placed upon the jury the responsibility of fixing the punishment when it finds a defendant guilty of first degree murder. In Commonwealth v. Parker, 1928, 294 Pa. 144, 151-155, 143 A. 904, 906-907, Chief Justice Von Moschzisker gave full consideration to the effect upon the admissibility of evidence of prior convictions under the Act of the rule of evidence that in the trial of a defendant for a crime, evidence of other independent, unconnected offenses committed by him is not admissible to establish his guilt of the crime for which he is on trial. The Chief Justice stated that since the statute required the jurors to assess the punishment and permitted them to extend mercy in a proper case by reducing the penalty to life imprisonment, the jury should be permitted to have the same sort of information that a judge considers when he decides as to the punishment for crime. But since in Pennsylvania the jurors may not render piecemeal verdicts there is no provision for separate inquiry. Hence, concluded the Chief Justice, their single verdict must include both their finding as to the defendant's guilt and their determination as to the penalty to be imposed upon him.
As we have seen, the General Assembly of Pennsylvania when it enacted the Penal Code of 1939 carried into section 701 the duty of the jury to determine the penalty in first degree murder cases "by its verdict". The construction previously given the Act of May 14, 1925 was applied by the Pennsylvania Supreme Court to section 701 in later murder cases. See the cases cited by the Supreme Court of Pennsylvania on the relator's second appeal. Commonwealth v. Thompson, 1957, 389 Pa. 382, 399-400, 133 A.2d 207, 216. The relator contends that the statute thus construed is unconstitutional. Basically the question is whether this Pennsylvania procedure offends "some principle of justice so rooted in the traditions and conscience of our people as to be ranked ...