Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.
Appellant was convicted of murder in the Court of Oyer and Terminer of Greene County, Pennsylvania in December, 1954. He was sentenced to life imprisonment. The conviction was affirmed by the Supreme Court of that state, Commonwealth v. Fletcher, 387 Pa. 602, 128 A.2d 897 and certiorari denied by the Supreme Court of the United States, 354 U.S. 913, 77 S. Ct. 1300, 1 L. Ed. 2d 1429. After that he filed a petition for a writ of habeas corpus in the district court on which a hearing was allowed.
At that hearing, (October 3, 1959), it was undisputed that in the course of the selection of a jury to try the state criminal indictment a prospective juror, Paul E. Stephenson, was called for examination. He testified that he was "perfectly impartial" as between the Commonwealth and the defendant Fletcher. He said he was free of prejudice or bias and that he could render a verdict solely from the trial evidence. He was accepted by both sides. Following Greene County practice he was immediately sworn in and seated as Juror No. 1. He was forthwith designated foreman by the presiding judge.
Another person on the jury panel, Mrs. Nellie Barnhart, examined on her voir dire, also stated she could be perfectly impartial and render a verdict solely from the evidence, without bias or prejudice. She said that she knew of nothing she had heard or read which would tend to prejudice her against the defendant. She was accepted and sworn as Juror No. 7.
As the selection of the jury continued and prior to its completion, counsel for the defense were informed (1) that Stephenson was the son-in-law of Paul Thomas, the Greene County detective who had investigated the crime and was to be a prosecution witness; (2) that Juror Barnhart was a distant relative of the deceased victim of the murder. Thomas did testify as a Commonwealth witness at the murder trial. As found by the district court he "testified to circumstantial facts which, combined with other circumstantial evidence, undoubtedly played an important role in petitioner's (Fletcher) conviction." (Emphasis supplied.)
The defense sought leave from the court to challenge both jurors for cause, or in the alternative, peremptorily. At that stage of the proceedings the defense had twelve unused peremptory challenges. The request was denied without a hearing.
Juror Stephenson was a witness in the district court habeas corpus hearing. He said that he was the son-in-law of Paul Thomas, having married the latter's daughter Ruth in 1947; that Thomas had been the Waynesburg Chief of Police for many years and the Greene County Detective for two years prior to the Fletcher trial; that he was on friendly terms with his father-in-law and from January, 1951, including the period in 1954 when Thomas was investigating the murder for which Fletcher was tried, had dinner regularly at the latter's home four or five times a week; that he knew at the time Thomas was working on the Fletcher case but never discussed it with him.
Mrs. Barnhart's brother was in court regarding her. He told the district judge that his sister was seriously ill, not expected to live. He explained that their grandmother was a sister of the murder victim Tanner's great grandmother which counsel stipulated resulted in a civil law 7th degree and canon law 5th degree relationship.
The district judge concluded as to Mrs. Barnhart that her retention did not result in a denial of due process or a fair trial. He based this on what he found to be remoteness of relationship, absence of contact with Tanner or his family during his lifetime, probable unawareness of the relationship and her juror's oath.
Regarding Stephenson the district judge posed the following question:
"Whether a denial of constitutional due process has occurred where in a trial of an accused charged with first degree murder one of the jurors, who served as foreman, was the son-in-law of the chief prosecuting detective and a material witness, whose relationship was brought to the attention of the presiding judge before the selection of the jury had been completed and before trial had commenced. 3
"3 Juror Stephenson was the first member of the voir dire interrogated and was administered the oath as juror # 1, and was forthwith designated foreman by the presiding judge. Juror Barnhart was named juror # 7 and was the 29th member of the voir dire interrogated. It is noteworthy that upon the interrogation of 47 members of the voir dire, after eight jurors had been selected and each administered the oath separately, defendant counsel interposed his objections to jurors Stephenson and Barnhart. He raised the objections while he continued to have 12 peremptory challenges remaining.
"At the time juror Barnhart had been approved, 16 members of the voir dire were challenged successfully for cause and 7 peremptory challenges were exercised by both the prosecution and the defense. Subsequent to the selection of juror Barnhart, and until the objections were interposed as to jurors Stephenson and Barnhart, 14 challenges for ...