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April 12, 1972

UNITED STATES of America ex rel. Charles Lee COOK a/k/a Charles Lee Cookes
S. Kenneth CLIFF, Warden, Lancaster County Prison

Edward R. Becker, District Judge.

The opinion of the court was delivered by: BECKER

EDWARD R. BECKER, District Judge.

 We have reviewed Magistrate Naython's report which is filed herewith and we affirm his recommendation that the petition be denied without a hearing and that there is no probable cause for appeal. However, we add the following observations.

 First, Magistrate Naythons approached the petition from the viewpoint of the sufficiency of the evidence, but did not deal with the constitutional principles or with the effect on the case of the trial court's charge. Relator has relied principally upon Commonwealth v. Owens, 441 Pa. 318, 271 A. 2d 230 (1970), which holds that the judicially-created presumption that mere unexplained possession of recently stolen handguns is sufficient to presume that the defendant knew that they were stolen when he received them is unconstitutional, for it was not "more likely than not" that the defendant knew that the guns were stolen. Owens applies a more restrictive constitutional rule than has yet been applied by the federal courts in regard to presumptions. *fn1" While we doubt we are bound by Owens, or that this circuit would follow it, *fn2" we will nonetheless apply it arguendo to the facts of this case and further assume that Owens is retroactive. *fn3" If these assumptions were valid, we might be obliged to grant relief if the trial judge had charged the jury in terms of the presumption in question. However, a review of the trial judge's instructions to the jury indicate that they were not charged in terms of the presumption; it was nowhere mentioned. Owens is therefore inapplicable. Since no constitutional error occurred, we cannot invade the jury's domain and decide whether the evidence was sufficient to convict the relator; on a petition for writ of habeas corpus, the district court may only decide sufficiency of evidence questions if it is so gross as to amount to a deprivation of due process, and, as Magistrate Naythons has amply demonstrated, there is no gross sufficiency question here.

 Second, in that part of the report dealing with the search and seizure, Magistrate Naythons ably discussed the facts and the law which justify the search in question on the basis of the wife's consent. We add that the facts show more than mere consent; they show that relator's wife requested the police to conduct the search on the premises over which she had control (because of fear for her personal safety). This additional factor strengthens the Commonwealth's position on that issue.


 March 16, 1972.

 EDWIN E. NAYTHONS, United States Magistrate.

 Relator in this application for habeas corpus seeks to challenge his jury conviction for receiving stolen goods in the Court of Common Pleas of Lancaster County. A prison sentence of nine (9) to eighteen (18) months was imposed after motions for new trial and arrest of judgment were dismissed. Direct appeal in the Pennsylvania Courts led to a per curiam affirmance in the Superior Court, Commonwealth v. Cook, 220 Pa. Super. 244, 281 A. 2d 774 (1971), and the denial of allocatur in the Supreme Court on January 12, 1972.

 In his present federal petition, Cook alleges the following grounds for relief:

 (a) that he was convicted of receiving stolen goods upon a presumption that he had knowledge of the fact that the guns were stolen arising from the fact that he had possession of such goods.

 (b) the search of relator's apartment was conducted without a search warrant but was consented to by his wife; and that the search was illegal because relator's wife did not have authority to consent to the search.

 Briefly summarized, the facts which gave rise to the filing of this petition are as follows:

 On October 13, 1968, relator was arrested in his second floor apartment upon an arrest warrant for assault and battery upon his wife. After relator was removed from the apartment, Mrs. Cook requested the officers to search their apartment for two (2) hand guns because she feared for her life. Upon a search, without a warrant, two (2) pistols were found in the living-room inside a record-player in the back of a turntable. Relator's wife had primarily *fn1" lived with her husband but at the time of the arrest was temporarily residing with her parents. Commonwealth witnesses established that ...

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