Police officers testified that they heard shots, and saw the defendant pointing what they believed to be a pistol; that as they approached, the defendant threw away the object he had been holding, and they never did find it; that the defendant said, "I only took two dollars from the man", and clutched two dollars in his hand; and that the defendant was drunk, resisted arrest, and had to be subdued by force.
In view of the fact that neither the petitioner nor his counsel objected to the consolidation of the two indictments, and particularly in view of the suggestion, at the habeas corpus hearing in this Court, that petitioner's trial counsel may have been under the [mistaken] impression that consolidation was good trial strategy, it may well be that the prejudicial joinder would not alone justify the conclusion that the petitioner was deprived of due process of law. But the prejudice inherent in the consolidation was confounded in this case by the absence of any cautionary instruction to the jury not to consider the August assault and battery evidence as proof of the July rape. Indeed, the inference is inescapable that at the conclusion of the court's brief, perfunctory, charge, the jury was left with the impression that petitioner's conduct in the August episode could properly affect their evaluation of his character and credibility in connection with the earlier charge.
On the whole record, I have concluded that the petitioner's trial was basically unfair, amounting to a deprivation of due process in the Federal constitutional sense. In view of this conclusion, it is unnecessary to decide whether petitioner's representation by counsel was inadequate by Sixth Amendment standards, and whether he has properly raised this issue, or exhausted his state remedies thereupon.
And now, this 30th day of June 1969, the petition of David Green for a writ of habeas corpus is granted, and it is ordered that the relator be forthwith discharged from custody. It is further ordered that the execution of the writ be stayed for a period of ten (10) days in order to permit the Commonwealth to appeal.
It is further ordered that, if no appeal from this order is taken within said ten (10) day period, the Commonwealth may obtain a further stay of the issuance of the writ and of relator's release from custody by signifying its intention to retry the petitioner and thereafter proceeding with reasonable promptness to retry the petitioner, and by according to the petitioner in the interim all of the rights of an untried prisoner, including the right to enlargement upon reasonable bail.