The opinion of the court was delivered by: GOURLEY
In this petition for writ of habeas corpus petitioner, who was convicted in the State Court for first-degree murder and sentenced to life imprisonment, alleges denial of due process under the Constitution of the United States for the reason that one member of the convicting jury was a distant relative of the victim, and another juror was the son-in-law of a testifying witness who was Chief County Detective, United States Constitution, Amendment XIV, Section 1.
I am confronted with the following legal question:
Is it intolerable, and thus violative of the 14th Amendment of the Constitution of the United States, as distinguished from being unwise and undesirable for a State Court, in the trial of a homicide, to require an accused to proceed to trial after jurors have been sworn but before jeopardy has attached, when juror No. 1 was the son-in-law of a witness who was Chief County Detective, but was not the Prosecuting Officer to said proceeding, and whose testimony was solely corroborative of circumstantial facts testified to by the Prosecuting Police Officer, together with the additional fact that juror No. 7 was related within the 5th degree of consanguinity to the victim of the homicide?
Petitioner has employed able counsel and together with the intervention of the Civil Liberties Union, has exhausted his legal remedies so that the issue is squarely presented and is undoubtedly ripe for determination by this court. Historically, appeal from his conviction to the Supreme Court of Pennsylvania was refused, Commonwealth v. Fletcher, 387 Pa. 602, 128 A.2d 897, and certiorari therefrom was denied by the Supreme Court of the United States 354 U.S. 913, 77 S. Ct. 1300, 1 L. Ed. 2d 1429. Upon petition for writ of habeas corpus to this court, and after extended hearing and argument, in which this member of the court recommended and obtained the intervention of the Attorney General of the State of Pennsylvania, the proceeding was stayed pending petitioner's application to the Supreme Court of Pennsylvania to reconsider the state constitutional issues, which had not been fully adjudicated on appeal, United States of America ex rel. Fletcher v. Cavell, D.C., 162 F.Supp. 319.
Following adverse decision of the Supreme Court of Pennsylvania, Commonwealth ex rel. Fletcher v. Cavell, 395 Pa. 134, 149 A.2d 434, this court entered an order further staying the proceedings pending application to the Supreme Court of the United States for writ of certiorari, which was denied, October 12, 1959, Commonwealth of Pennsylvania ex rel. Fletcher v. Cavell, 361 Pa. 847, 80 S. Ct. 102, 4 L. Ed. 2d 85.
Not only at the inception of this proceeding before this court was a most thorough hearing conducted in regard to the two jurors whose presence on the jury petitioner contends deprived him of due process of law, but this court also renewed this privilege to the petitioner and the Commonwealth, as well as the intervening Civil Liberties Union to present any additional testimony, evidence, argument, or briefs, which any of the interested parties might desire.
The entire record of the state proceeding was incorporated into the record of hearing before this court.
I commerce my evaluation of this petition with the realization of the well-settled law that the District Court may not, on a petitioner for habeas corpus, usurp the function of the State jury by determining do novo, the innocence or guilt of a prisoner convicted under state process, United States ex rel. Helwig v. Maroney, 3 Cir., 271 F.2d 329.
Without consideration of the merits, therefore, I shall direct my attention only to the facts which pose a constitutional question.
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 adduced on the witness stand. He was then accepted by both sides, sworn and seated in the box as Juror No. 1, and subsequently was chosen foreman of the jury.
Mrs. Nellie Barnhart, on voir dire, likewise testified that she could be perfectly impartial, that she could render a verdict solely from the evidence, without bias or prejudice. She was then accepted and sworn as Juror No. 7.
While the selection of the jury continued and before all jurors had been selected and each member of the jury sworn,
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 subsequently testified as a witness corroborating certain investigative conclusions of the Prosecuting State Police Officer 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 ...