The opinion of the court was delivered by: RYAN
This petition for a writ of habeas corpus has been filed by William H. Draper, a prisoner under sentence of death confined within this district in New York State Prison, Ossining, Westchester County, N.Y., following his conviction of murder in the first degree in the Court Court of Monroe County, New York, by jury verdict rendered on April 24, 1952. Upon appeal to the New York Court of Appeals, the judgment of conviction was affirmed on November 20, 1952 without opinion, 304 N.Y. 799-800, 109 N.E.2d 342, 343; five judges concurred in the affirmance; Loughran, Ch. J. and Froessel, J., dissented in a memorandum reading:
'The defendant's constitutional protection against compulsory self-incrimination was invaded when the trial prosecutor commented adversely and at length upon the defendant's refusal to take a truth serum test, see People v. Forte, 277 N.Y. 440, 14 N.E.2d 783; VIII Wigmore on Evidence, 3d Ed., 2272-2273. The further comment of the District Attorney to the jury that they should not, be misled by any idea that this defendant, who pleaded insanity, may be confined permanently to a hospital, thus suggesting that he might be released, was also improper.'
Thereafter on January 7, 1953, the court added to its remittitur the following:
'Upon this appeal there was presented and necessarily passed upon the following questions: (1) whether the prosecutor, in violation of defendant's constitutional rights against self-incrimination, had implied in his summation that defendant's refusal to submit to a truth serum test was evidence of his guilt; (2) whether the trial court had improperly stated his determination of a question of fact in the case; and (3) whether the prosecutor had improperly advised the jury to find the defendant guilty even if he were insane. This Court held that the Fourteenth Amendment of the Constitution was not violated by the aforesaid statement of the District Attorney or the Court.'
A petition was filed with the Supreme Court of the United States for a writ of certiorari to review the constitutional questions, which the New York Court of Appeals certified, and this petition was denied by the Supreme Court on April 27, 1953, 345 U.S. 944, 73 S. Ct. 839.
At the hearing before me no relevant facts appeared in dispute and no relevant testimony was offered. The case on appeal before the New York Court of Appeals and the petition to the Supreme Court were submitted and have been examined and considered by me on this application.
From the record of the proceedings heretofore had, I conclude that petitioner has 'exhausted the remedies available in the courts of the State * * * by any available procedure'. Sec. 2254, 28 U.S.C.A. I also conclude and am satisfied from the record that the 'state process has given fair consideration to the issues * * *, and has resulted in a satisfactory conclusion.' Brown v. Allen, 1953, 344 U.S. 443, 463, 73 S. Ct. 397, 410. I find from the record, that the federal constitutional rights of petitioner have been protected, that there has been no denial of due process, and I conclude that the petition should be denied.
The indictment upon which the defendant was tried, charged Murder in the first degree and alleged that,
'The defendant, on or about July 17, 1949, at the Town of Greece, Monroe County, New York, wilfully, feloniously and of malice aforethought killed one Jennie O'Keefe by striking and beating her on the head and body with his hands and fists, thereby inflicting injuries which caused the death of said Jennie O'Keefe.'
It may be observed, although not material to the issues now presented, that on a prior trial, the County Court, Monroe County, entered judgment sentencing defendant to life imprisonment, upon a verdict convicting the defendant of the crime of Murder in the first degree with a recommendation of clemency, Sec. 1044, Penal Law of New York, McK. Consol. Laws, c. 40; and that on appeal, because of errors on the trial, this conviction was reversed by the Appellate Division of the Supreme Court of New York, Fourth Judicial Department, 279 Appl.Div. 298, 104 N.Y.S.2d 703, and that on further appeal by the State to the Court of Appeals this reversal was affirmed with no opinion, 1951, 303 N.Y. 653, 101 N.E.2d 763.
Although on trial it was the contention of the prosecution that petitioner had caused the death of the deceased while engaged in committing the independent felony of rape or attempted rape and was therefore guilty of 'felony murder' N.Y. Penal Law, Secs. 1044(2), 2010(2), 260, the trial judge submitted the case to the jury upon instructions that:
The jury's verdict 'may be any one of six different forms, namely:
'(1) Guilty of Murder in the first degree.
'(2) Guilty of Murder in the first degree with a recommendation of confinement of the defendant for the term of his natural life.
'(3) Guilty of Murder in the second degree.
'(4) Guilty of Manslaughter in the ...