MEMORANDUM DECISION
Pеtitioner, Fred R. Zemina, seeks a Writ of Habeas Corpus, alleging that his confinement under the custody of Herman Solem, Warden of the South Dakota Penitentiary, is based on a conviction in state court for first degree manslaughter that was the result of proceedings that deprived him of various fourth, sixth, and fourteenth amendment rights. Specifically, the petitioner alleges that the state proceedings were constitutionally and jurisdictionally invalid for the following reasons:
I. The trial court deprived him of a jury trial and denied him of his liberty without due process of law when it refused his requested instructions as to excusable homicide, justifiable homicide, self-defense and defense of third persons.
II. The trial court deprived him of a jury trial and denied him due process of law when it overruled his objections to the prosecution’s instructions on aiding and abetting.
III. Improper comments by the prosecution in closing argument deprived petitioner of his rights to due process of law and a fair trial.
IV. The suppression by the State of a letter regarding the competency of a potentially crucial defense witness deprived the petitioner of his rights to due process of law and a fair trial.
V. The suppression by the State of exculpatory evidence in the form of the summary of an interview that reflected on the credibility of a government witness deprived the petitioner of his rights to due process of law and a fair trial.
VI. The admission of a rifle into evidence at the trial violated petitioner’s constitutional right to freedom from unreasonable search and seizure, and testimony made in support of the admission of the rifle was false and misleading.
VII. Petitioner was denied effective assistance of counsel.
*458 VIII. Unreasonable delay in preparation of the trial transcript denied petitioner of a meaningful appeal and constituted a denial of due process of law.
IX. Petitioner was denied trial in the county wherein the alleged offense occurred.
X. The county wherein the alleged offense occurred was Indian Country and the State was without jurisdiction.
XI. The cumulative effect оf all of these errors deprived petitioner of fundamental constitutional rights. 1
FACTS AND PROCEDURAL HISTORY
Petitioner was a resident of Todd County, South Dakota, which is the present area of the Rosebud Indian Reservation. Todd County is an unorganized county attached to Tripp County. Petitioner is a white person who married an Indian and was living with her on a ranch located in the same general vicinity as the house where Ed and Bruce Zemina, brothers of the petitioner, were living. Also living in the immediate vicinity was Kenneth Fernen, Sr., the deceased, a white rancher who lived on his ranch with his family. The parties had been neighbors for many years.
In 1966 Fernen failed to apply for the right to lease Indian lands which the Fernen family had previously leased for many years. Clara Zemina, the wife of petitioner, applied for the leasing rights to certain lands immediately adjacent to Fernen’s house. Following this, the relationship between the Zeminas and Fernen began to rapidly deteriorate. The driveway to Fernen’s house, which was located on the leased land, was closed by the Zeminas when they took possession of the land and Fernen was forced to put in a new driveway. The Zeminas also fenced the newly leased acreage primarily because Fernen continued to graze livestock on the property even though he no longer retained any lease rights. During the period from 1966 to 1969, the Bureau of Indian Affairs Police and Todd/Tripp County Sheriff’s officers were called to the area on numerous occasions to settle minor disputes. On one occasion while petitioner was erecting his fence, Fernen assaulted him and struck him several times. Petitioner commenced a civil action against Fernen and obtained a judgment in the amount of approximately $2,500.00. The friction between Fernen and the Zeminas culminated in a violent incident on November 8, 1969.
Fred and Bruce Zemina spent the afternoon of November 8,1969, working in a hay field. Fernen spent the afternoon in several small communities in Nebraska buying some parts. It is undisputed that Fernen consumed alcoholic beverages in at least two bars and also that he acquired a case of wine and a 12 pack of beer. Fernen returned to South Dakota in the late afternoon and stopped to visit a neighbor about 5:15 p. m. While visiting with the neighbor Fernen consumed a can of beer. The Zeminas could be seen working in the hay field some distance away and Fernen and his neighbor joked about them. The neighbor noticed at this time that Fernen had a .22 rifle.
The Zeminas quit work sometime after 5:30 p. m. as darkness was approaching and headed home. Fred Zemina was driving the lead tractor and pulling a hay baler. Bruce Zemina was driving the second tractor pulling a hay sled with a stack of hay. The brothers were dressed almost identically. Both tractors were heading east. Fernen left the neighbor’s ranch sometime after the Zeminas started home. Fernen came up behind the Zeminas as they were headed east and followed them. At about 5:50 p, m. Fernen’s daughter, Connie Fernen Grablander, was headed west on the sаme road. She approached and passed the first tractor driven by Fred Zemina. She testified that as she approached the second tractor, driven by Bruce Zemina, Bruce forced her off the road. The tractor then stopped. After re-starting her automobile she met her father in his pickup a short distance behind the hay sled. She stopped and talked to her father for a little while. *459 Fernen was upset with the Zeminas, at least initially, and called them a “dumb outfit”. Fernen opened another can of beer while Connie was talking to him. Connie then drove away. She testified that as she was driving away she looked into her rear view mirror and saw the petitioner walking toward her father’s pickup. The time would have been approximately 6:00 p. m.
The only evidence submitted at the trial concerning what transpired after Connie drove away was the testimony of the petitioner. He testified that Bruce was the first person to approach Fernen’s pickup and that he, the petitioner, only apрroached the pickup after he heard the horn blowing and thought it was stuck. He further testified that a violent struggle was in progress when he first approached the truck and that he heard a gun go off as he came up. Fernen and Bruce were fighting over the .22 rifle and Fernen was choking Bruce. The petitioner testified that he said, “hey, what the heck is going on here? Let go of him”, and gave Fernen a punch. Fernen replied, “I shot Bruce and I am going to get you.” The struggle continued and after Bruce said “he shot me really bad” and “I think I am dying”, Fred tried to grab the gun. He testified that as he did so Fernen kicked him in the nose and knocked him down. Fred heard the gun go off again. When he got up he saw Bruce and Fernen both still with their hands on the gun and Fernen was trying to pull the clip out. Fred heard the gun go off again and then Bruce fell back with the gun and then hit Fernen with it saying “stay there now you son of a bitch. I got the gun.” Bruce and the petitioner then left, Bruce saying that he wanted to take the gun because it was the one that shot him.
Fernen’s son found him shortly thereafter, lying on the ground on the passenger side of the pickup. Later investigation showed that the ground on the passenger’s side was scuffed up. A scoop shovel was found in the pickup and Fernen’s keys were found 20 to 25 feet away, two details that were never attempted to be explained at trial. Fernen was taken from the scene to the hospital in Rosebud. He had fractured jaws, a gunshot wound in the neck and one through the forehead that caused brain damage that resulted in his death at approximately 8:15 p. m. Because of the amount of blood on his face, the gunshot wounds were not immediately apparent. A blood sample was taken from the decedent about 8:30, approximately 2V2 hours after the wounds were received. Analysis showed that the sample contained 0.06% alcohol by weight. The State chemist testified that alcohol oxydizes in the blood at a rate of about .012 to .020 per hour.
After picking up petitioner’s wife and another brother, Ed, Bruce was taken to a Winner hospital where he was treаted for an abdominal gunshot wound. Both Bruce’s and Fernen’s wounds were made by the same .22 rifle. Petitioner was later treated for facial abrasions, a broken nose and two broken ribs.
On the way to the hospital with Bruce, Fred Zemina stopped and called a member of the tribal police force and told him to go investigate the scene. Petitioner said there had been a set-to with Fernen, that Bruce had taken a rifle from Fernen, that Bruce had been shot and that Fernen had gone for another gun in his belt. No other gun was ever found. Petitioner also tried to call his attorney at this time, but was unsuccessful.
Later that night, pursuant to a search warrant, the Sheriff of Todd/Tripp counties searched petitioner’s car in the Winner hospital parking lot. The .22 rifle was found on the rear floorboard under some clothes.
Both petitioner and Bruce Zemina were charged with murder, but Bruce has never been brought to trial. He was not rational at the time he was treated for the gunshot wound and continued to act irrationally for several months. Bruce was eventually committed to the Yankton State Hospital where he remains. Both petitioner and Bruce were represented by the same counsel for some time, but he withdrew as counsel for Bruce on August 15, 1970, after Bruce was committed and approximately one month before petitioner’s trial.
*460 Petitioner’s trial commenced in Tripp County on September 21, 1970. He was found guilty'of first degree manslaughter on September 28,1970. Petitioner was sentenced to life imprisonment on October 15, 1970. His motion for a new trial was denied on January 11, 1971.
Petitioner perfected a timely appeal to the South Dakota Supreme Court on January 22,1971. Following many delays in the preparation of the trial transcript, the conviction was affirmed on May 4, 1973, after the filing of briefs and the holding of oral arguments.
State v. Zemina,
1973.
A petition for a Writ of Habeas Corpus was denied in this court on September 27, 1972, because the state appeal was pending. On January 15, 1973, petitioner was informed that he was ineligible for post conviction relief in state circuit court for the same reason.
Following the denial of his direct appeal, petitioner filed another petition for post conviction relief in the state courts on December 26, 1973, amended on July 17, 1974, and October 16, 1974. Hearings were held on January 18, July 17 and December 12, 1974, and the prayer for post conviction relief was denied on January 13, 1975. Petitioner did not appeal this denial to the South Dakota Supreme Court.
The present petition for a Writ of Habeas Corpus was filed in this court on September 24, 1976, and was amended on February 15, 1977. A hearing was held on March 7,1977, and voluminous files and transcripts were received as exhibits. Both petitioner and respondent have had access to these exhibits and both have submitted briefs to the court. All of the files and transcripts, as well as the briefs, have been carefully considered and the various claims of the petitioner have been dealt with as follows.
EXHAUSTION OF STATE JUDICIAL REMEDIES
It is settled federal law that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for a Writ of Habeas Corpus. 28 U.S.C.A. section 2254(b) (1971);
Picard v. Connor,
Petitioner’s claims V, VI, VIII, IX and XI 2 are clearly unexhausted, as they *461 have never been presented to the South Dakota courts 3 either on petitioner’s direct appeal or in his post conviction petition. S.D.C.L. section 23-52-15 (1967) provides as follows:
All grounds for relief available to a petitioner under this chapter must be raised in his original, supplemental or amended petition. Any grounds not so raised or finally adjudicated or knowingly and understandingly waived in the proceedings resulting in the conviction or sentence or in any other proceeding that the petitioner has taken to secure relief from his conviction, or sentence, may not be the basis for a subsequent petition, unless the court finds grounds for relief asserted which for reasonable causes were omitted or inadequately raised in the original, supplemental or amended petition.
Whether petitioner knowingly and understandingly waived the grounds that are the basis of claims V, VI, VIII, IX and XI, or whether there were reasonable grounds for their omission is for the state courts to determine in the first instance.
4
See McClain v. Swenson,
Although the State has not challenged the exhaustion of the following grounds of the petition for the Writ of Habeas Corpus, the court has noted in its consideration of the state record that claims IV, VII and X
5
*462
are possibly unexhausted. Although petitioner did not raise these claims in his direct appeal, all of these issues were raised in his state post conviction proceedings, and were determined adversely to him. S.D.C.L. section 23-52-16 (1971 amend.) provides for an appeal to the South Dakota Supreme Court upon issuance of a certificate of probable cause that an appealable issue exists. The state circuit court judge who presided at the post conviction proceedings expressed his willingness to issue such a certificate and petitioner was informed of his right to appeal. Because petitioner steadfastly refused to allow the lawyer who represented him at his post conviction proceedings to continue to represent him and had contacted another lawyer, whom, however, the circuit court judge refused to appoint as petitioner’s counsel, petitioner allowed the six month deadline for filing the appeal to lapse. The South Dakota Supreme Court has consistently described the time limitations in its appeal statutes as being jurisdictional;
6
that is, the deadlines for filing are absolute. It is tempting, therefore, to find that petitioner has no available state remedies to pursue concerning claims IV, VII and X since “federal courts will not require pursuаl of state remedies where such a requirement is an exercise in futility.”
Stead v. Link,
Further, as regards claim VII concerning ineffective assistance of counsel, there are several matters raised in the petition before this court that were not raised when the similar claim was made in state court.
7
Since the petitioner must exhaust his state remedies “by presenting the same evidence and issues in the state trial and appellate courts” that he would in his federal proceeding, “federal relief will be denied until the state courts have been presented these new grounds.”
Burke v. Erickson,
*463 Finally, claim IV is intertwined, at least insofar as the legal issues regarding nondisclosure, with the undeniably unexhausted claim V. Claim VII is intertwined with the unexhausted claims V, VI and IX because the substance of the claim of ineffective assistance of counsel is based on trial counsel’s failures in regard to those claims in earlier proceedings. See notes 2, 3 and 5, supra. This being the case, under the Eighth Circuit rule as expressed in Triplett v. Wyrick, supra, all of the intertwined claims should be left for possible state determination.
For the above reasons, and because “(w)hen a federal court is unable to determine unequivocally that an issue has been considered and ruled upon by the state courts, comity requires that the initial determination of the issue be made by the state courts”,
Tyler v. Swenson,
This court finds, however, that claims I, II and III clearly havе been exhausted in state judicial proceedings. These claims were decided adversely to the petitioner upon the direct appeal of his conviction. State
v. Zemina, supra.
In
Orricer v. State,
*464 CLAIM III:
ALLEGED ERROR IN THE PROSECUTION’S FINAL ARGUMENT
The petitioner bases his claim that improper prosecutorial statements in the final argument deprived him of a fair trial and due process of law on the following com-’ ments made by the State:
1) You have got to live with this man. If he is a murderer, and we believe he is, then it is you that has to live with him, your neighbors, your kids. If he is a killer when will he kill again and this is the thing you have to decide. There is no question in my mind that you have such evidence to convict this man if you want to and nobody will ever do any thing if you acquit him except you have to live with him. .
2) Fred testified that he got no answer when he tried to call his lawyer. That is not the truth. Dan said there was a conversation, and I am sure that the conversation took place between Mr. Zemina and Rick Johnson’s (the attorney’s) wife. The fact that he called his lawyer is a telling sign. With the above facts in mind we have further proven our case in chief.
Petitioner argues that the first comment was improper because it contained an expression of the prosecution’s belief in petitioner’s guilt and suggested that the jury, their families and the community would not be safe if petitioner was acquitted. He argues that the second comment was improper because it implied that guilt should be inferred from the fact that petitioner exercised his constitutional right to the assistance of counsel.
The South Dakota Supreme Court found that there were no instances of prosecutorial argument rising to the level of error requiring reversal of petitioner’s conviction.
State v. Zemina, supra.
Findings of fact by a state court are presumptively valid in federal habeas corpus proceedings. 28 U.S.C.A. section 2254(d) (1971).
See
discussion in
In re Parker,
This court does not condone the statements made by the prosecution and notes that they are the type of comment that should be avoided. The question on a petition for a Writ of Habeas Corpus, however, is whether the comments, even if improper, rise to the level of constitutional violations. The United States Supreme Court has noted that improvisation takes place in prosecutorial arguments, and that while prosecutorial misconduct is not justified, still a distinction must be drawn “between ordinary trial error of a prosecutor and . . . egregious misconduct.”
Donnelly v. DeChristoforo,
As regards the State’s comment expressing belief in petitioner’s guilt, “(t)he question of guilt or innocence rests with the jury and the prosecution has no authority to sit as a ‘thirteenth juror’.”
United States v. Splain,
545 t F.2d 1131, 1134 (8th Cir. 1976). For that reason, prosecutorial comments on culpability are “particularly objectionable and highly improper.”
Id.
at 1135. This court notes, however, that in reading the comment made by the prosecution in the present case in its totality, it appears that the prosecutor was basing his statement on the evidence, not on personal knowledge. While “even if based on the evi'Wee, statements by course1
o*
their conv: ition of the merits of th
,¡r .
cause should always be avoided . . ., (they) ‘are not reversible error
per
se’.”
United States v. Hager,
The evidenсe of guilt in Fred Zemina’s case was not overwhelming, and “if the evidence of guilt is weak or tenuous, the existence of prejudice is more easily assumed.”
Id.
Also, the trial court gave the jury no cautionary instruction to the effect that comment by attorneys was not evidence to be considered in its deliberations. If, therefore, this were a matter of a direct appeal from a conviction in federal court, there might be reversible error. The test in a habeas corpus proceeding, however, is more demanding, and generally “prejudicial remarks made by a prosecutor to the jury do not give rise to denial of due process . . . ”
Maggitt v. Wyrick,
The same is true of the statements made concerning the safety of the community, which also were not objected to at the time they were made. The Eighth Circuit has specifically found that a plea to the jury “for the good of the community that you represent” to “rid ourselves of these burglars, sneak thieves in the night” would, even in the absence of an admonition of the trial court, be permissible argument.
United States
v.
Stead,
The argument of the prosecution referring to petitioner’s attempt to call his attorney creates a very close question as to whether his sixth amendment rights have been violatеd. There are no Supreme Court or Eighth Circuit eases dealing with this issue, but an analogy can be drawn to instances where the prosecution comments on an accused’s failure to testify. In
Griffin v. California,
Drawing the analogy to the facts in this case, the State does appear to have intended the jury to draw an inference of guilt from petitioner’s exercise of his sixth amendment right to counsel. The prosecution stated that petitioner’s call to his lawyer was “a telling sign”. Since the statement that followed immediately was that the State had “further proven” their case, the only thing that petitioner’s call could have been a “telling sign” of was his guilt. Even keeping in mind the decision in
Maggitt v. Wyrick, supra,
wherein it was held that improper prosecutorial arguments do not amount to due process violations in habeas corpus cases, this court feels that improper argument can constitute a denial of the specific sixth amendment right to counsel. This is true in light of the reasons
*466
given in
Griffin v. California, supra,
for holding that comment on a defendant’s failure to testify was a fifth amendment violation. “(C)omment on the refusal to testify . is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.”
The prosecutor’s comment concerning [defendant’s] consultation with counsel the day after the shooting incident would appear to have been directed to, and may have had the effect of, raising in the jurors’ minds the inference that petitioner was, or at least believed himself to be, guilty. Such an inference might certainly tend to cause the jury to disbelieve Macon’s version of the story. Under these circumstances, the possibility of prejudicial impact is present and we, therefore, are unable to conclude that the prosecutor’s comment was “harmless beyond a reasonable doubt.” 9
Similarly, it cannot be said that the prosecutor’s comment in the case under consideration in this petition for a Writ of Habeas Corpus was “harmless beyond a reasonable doubt.”
CLAIMS I AND II:
ALLEGED ERRORS IN THE INSTRUCTIONS
The petitioner alleges that he was deprived of due process and a jury trial because the trial court refused his requested instructions on excusable homicide, justifiable homicide, self-defense and defense of a third party. The South Dakota Supreme Court found that under state law, 10 matters of excuse and justification were affirmative defenses and that there was no support in the evidence for giving such instructions. State v. Zemina, supra. The petitioner also protests the aiding and abetting instructions given by the court, 11 alleging that the *467 instructions should have charged that it must be proven beyond a reasonable doubt that the principal (/. e. Bruce Zemina) committed an offense. The instructions were found to be adequate and proper statements of South Dakota law. 12 Id.
As noted earlier, under 28 U.S.C.A. section 2254(d) (1971), state findings of fact are presumptively valid in habeas corpus proceedings, but state adjudications of law are not binding, for the state court “may have misconceived a federal constitutional right.”
Brown v. Allen,
Feeling that the state court is the best interpreter of its own substantive law, this court does not intend to substitute its interpretation for the state supreme court’s conclusions that the instructions given adequately stated the law on aiding and abetting or that in South Dakota, questions of excusable or justifiable homicide are matters of defense. 13 That being the case, giving the instructions on aiding and abetting was not error. The issue that this court will address is whether, once the aiding and abetting instructions were given, it was constitutionally mandated that instructions presenting petitioner’s various defense theories be given.
it is well settled that a defendant is entitled to an instruction on his theory of defense if there is evidence to support it and a proper request is made.
United States v. Brown,
That we have found that there was evidence supporting instructions on excusable and justifiable homicide, however, is an insufficient ground to grant relief in this petition. We must find that refusing such instructions was constitutional error.
(O)rdinarily habeas corpus being a collateral attack is not considered to be a proper remedy for correcting errors in trial procedure. . . . It is only where the trial errors or irregularities infringe upon a specific constitutional protection or are so prejudicial as to amount to a denial of due process that a justiciable federal issue is presented in a habeas corpus proceeding. Atwell v. State of Arkansas,426 F.2d 912 , 915 (8th Cir. 1970), cited in, e. g., Ball v. Wyrick,547 F.2d 78 (8th Cir. 1977); Hogan v. State of Nebraska,535 F.2d 458 (8th Cir. 1976); Maggitt v. Wyrick,533 F.2d 383 (8th Cir. 1976).
“Claimed errors in instructions to the jury are generally not of such constitutional magnitude and do not state a claim for habeas corpus relief.”
DeBerry v. Wolff,
In this case, instructions on excuse and justification were fervently requested. The relationship between those requested instructions and the aiding and abetting instructions has already been discussed. Furthermore, there was vehement objection to the instruсtions as given. The question remaining is how badly the failure to give the instructions on excusable and justifiable homicide “infected” the constitutional complexion of the trial.
Aid in analysis can be drawn from the case of
Strauss v. United States,
The jury is the fact-finder. If the trial judge evaluates or screens the evidence supporting a proposed defense, and upon such evaluation declines to charge on that defense he dilutes the defendant’s jury trial by removing the issue from the jury’s consideration. In effect, the trial judge directs a verdict on that issue against the defendant. This is impermissible.
In the case under consideration in this habeas corpus petition, the judge screened the evidence relating to excuse and justification and apparently determined that the jury did not need to consider it. In giving an instruction that petitioner could be convicted for merely participating in a crime with criminal intent without allowing the jury to consider evidence to support theories that there was no crime or that peti *470 tioner had no criminal intent, the judge, in effect, directed a guilty verdiсt, for petitioner had already admitted participation. 19 The prejudicial impact of such a course of action cannot be questioned. The United States Constitution guarantees all criminal defendants a trial by an impartial jury. What Fred Zemina received was, in effect, a trial by the judge.
In addition to the right to a jury trial, the due process clause requires the prosecution to prove a defendant’s guilt beyond a reasonable doubt.
In re Winship,
“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Stump v. Bennett,398 F.2d 111 , 117 (8th Cir. 1968), cert. den.393 U.S. 1001 ,89 S.Ct. 483 ,21 L.Ed.2d 466 (1968) (finding instruction shifting to defendant burden of proving his alibi defense violative of due process of law) citing Coffin v. United States,156 U.S. 432 , 453,15 S.Ct. 394 ,39 L.Ed. 481 (1895).
For all of these reasons, this court finds that the refusal of the state trial court to render any instructions on excusable homicide, justifiаble homicide, self-defense or defense of a third person was error of constitutional magnitude, depriving petitioner of his fundamental rights of trial by jury and due process of law. The court further finds that such constitutional error clearly was not “harmless beyond a reasonable doubt.”
Chapman v. California,
Therefore, and also because of the reasons expressed in the discussion of prosecutorial error, it is ordered that the petition for a writ of habeas corpus is hereby granted, and it is hereby ordered that the said Fred R. Zemina shall be released unless retried within ninety days from the date of this memorandum decision or within ninety days from the mandate received from the Eighth Circuit Court of Appeals in the event of an appeal by the State of South Dakota resulting in an affirmance of this decision.
Notes
. All of these claims are elaborated upon in the subsequent text and footnotes.
. The factual bases for these claims follow. Claim V, suppression of exculpatory evidence, relates to the testimony of Connie Fernen Grablander that she was sure that it was Fred Zemina that was approaching her father’s pickup as she drove away. (Directly contradicting petitioner’s testimony that it was Bruce that first approached the pickup.) Counsel in this petition for a Writ of Habeas Corpus discovered an interview summary in the files of the Tripp County States Attorney that indicated that on the day after the incident Connie said she did not know which brother was driving which tractor, nor did she identify which brother approached her father’s pickup, merely saying that “the man on the tractor and hay sled was getting off the tractor.” Petitioner argues that this gives rise to an inference of perjury, or at least touches upon the credibility of the government witness.
Claim VI, the fourth amendment claim, is based on an allegation by the petitioner that the affidavit supporting the search warrant that resulted in the seizure of the rifle was based on conjecture and speculation and wholly failed to establish probable cause. Further, petitioner argues thаt the chronology of events on the night of November 8, 1969, indicate that testimony given by the sheriff at the time of the admission of the .22 rifle, both at the prelimi *461 nary hearing and at trial, was false and that had the court not been misled the rifle might have been suppressed.
Claim VIII relates to the allegations of the petitioner that due to unnecessary and inexcusable delays of a minimum of eighteen months in the preparation of his trial transcript, during which time he was denied bail, the state appellate process was rendered ineffective and petitioner was deprived of due process.
Claim IX was not elaborated upon, but there is some indication that petitioner feels that he was deprived of trial by a jury of his peers because he was not tried in the unorganized county of Todd, but rather in Tripp County, the organized county to which Todd County is attached. Todd County has a large Indian population and Tripp County does not. Petitioner apparently believes that he may have been the object of рrejudice because he was married to an Indian.
Claim XI is self-explanatory.
. A motion was made at the preliminary hearing regarding Claim VI (suppression of the rifle) but there was no objection made to the admission of the rifle into evidence at the trial, nor was the issue raised on appeal.
. It is particularly appropriate to give the state courts an opportunity to determine petitioner’s allegation VI, the search and seizure issue. The Supreme Court has recently held in
Stone v. Powell,
The factual bases for these claims follow. Claim IV concerns a letter regarding the competency to testify of Bruce Zemina, the only eyewitness other than the petitioner. The letter was sent to the prosecution and stated that “This man is reliable as a witness.” The same psychiatrist that wrote this letter shortly thereafter wrote a contradictory letter to the petitioner’s trial counsel, stating that Bruce’s “testimony would be unreliable.” There is dispute as to whether the State made their letter available to defense counsel (the state court held in the post conviction proceedings that it had); and even if made available, whether receipt of the letter would have affected defense counsel’s decision not to call Bruce as a witness.
Claim VII, regarding the ineffectiveness of trial counsel, is based on a number of grounds. Counsel’s failure to move for a change of venue has been mentioned, supra note 2, as has his failure to pursue the issue of suppression of the rifle, supra note 3. Petitioner also asserts that his counsel made ineffective discovery efforts as regards Connie Grablander’s testimony. See note 2, supra. Petitioner’s main contention is that .a significant conflict of interest arose because of his trial counsel’s dual representa *462 tion of petitioner and his brother Bruce up until a month before the trial. Petitioner asserts the conflict adversely affected the attorney’s trial performance in many ways, particularly in the matter of calling Bruce as a witness. Bruce allegedly had some unique knowledge and was, therefore, an essential witness.
Claim X is a purely legal issue, as it is undisputed that both the decedent and petitioner were white and that the incident oсcurred in Indian Country (as defined in 18 U.S.C.A. section 1151). The state court in the post conviction proceedings found state jurisdiction. Although, under the doctrine of exhaustion, petitioner may have to pursue this contention further in state court before this court can render a decision regarding its merits (see following text), it is observed that the state court has thus far rendered a perfectly correct interpretation of the federal law.
See
18 U.S.C.A. section 1153;
United States v. McBratney,
.
See, e. g., Federal Land Bank of Omaha v. Le Mars Mutual Insurance Co. of Sioux Falls,
. See note 5, supra. The allegations regarding failure to move for a change of venue, failure to pursue the issue of suppression of the rifle and failure to make effective discovery attempts were not raised at all in the state courts. The conflict of interest ground was not raised in all of its complexity.
. The current Eighth Circuit standard for testing whether a habeas corpus petitioner has waived claims due to a deliberate bypass of state procedures is whether “knowingly and understanding^” the petitioner madе a “considered choice” to waive his claims.
Rinehart v. Brewer,
. This standard was set in
Chapman v. California,
. The applicable state statutes regarding excuse and justification follow.
S.D.C.L. section 22-16-16:
Homicide is manslaughter in the first degree when perpetrated without a design to effect death and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon: unless it is committed under such circumstances as constitute excusable or justifiable homicide.
S.D.C.L. section 22-16-35:
Homicide is [excusable] when committed by any person in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant when there is reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished.
. Instruction 23
Under our law the distinction between an accessory before the fact and a principal, in a case of felony such as the offense charged, is abrogated, and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid and abet in its commission, though not present, are considered as principals and may be prosecuted, tried, and punished as principals. No additional facts need be shown against such an accessory before the fact than are required against his principal and such an accessory may be prosecuted, tried and punished even though the principal be neither prosecuted nor tried.
A person aids and abets the commission of a crime if he knowingly and with criminаl intent aids, promotes, encourages or instigates by act or advice, or by act and advice (sic), the commission of a crime such as charged although not present and not directly committing the act constituting the offense is an accessory before the fact and chareable (sic) as a principal.
So in this case if you should find that one person was a principal and the other person was an accessory before the fact to the com *467 mission of the offense charged, both would be guilty thereof.
Instruction 24
The mere presence of a person at the commission of the crime does not make him guilty of the crime unless he participates in the crime or aids, abets, or assists another in the commission of the crime.
In order to aid and abet another to commit a crime it is necessary that the accused willfully associate himself in some way with the criminal ventuer (sic), and willfully participate in it as he would in something he wishes to bring about; that is to say that he willfully seek by some act or сommission of his to make the criminal venture succeed.
. The applicable state statutes regarding aiding and abetting follow.
S.D.C.L. section 22-3-3:
All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense or aid and abet in its commission, though not present, are principals. S.D.C.L. section 23-10-3:
The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated, and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid and abet in its commission, though not present, must be prosecuted, tried, and punished as principals.
S.D.C.L. section 23-10-4:
No additional facts need be alleged in any indictment or information against an accessory before the fact than are required in an indictment against his principal.
S.D.C.L. section 23-10-5:
An accessory to the commission of a felony may be рrosecuted, tried, and punished, though the principal be neither prosecuted nor tried, and though the principal may have been acquitted.
. The constitutionality of the South Dakota Supreme Court’s interpretation of S.D.C.L. section 22-16-16 in
State v. Zemina, supra,
and
State v. Johnson,
. The full text of the aiding and abetting instructions is found at note 11, supra.
. It should be noted that this court is not reneging on its previous decision not to challenge the state court ruling that it was unnecessary for the state to prove that Bruce Zemina committed a crime before petitioner could be convicted, for aiding and abetting. The issue addressed here is whethеr petitioner should have been allowed to raise the defense that there was no crime committed.
. In the summary of the evidence that follows in the text, the court does not even attempt to exhaustively review all of the evidence supporting a theory of excuse or justification (or controverting it). The record of a four day trial is not easily condensed. The instances mentioned merely indicate that such evidence existed.
. Potential problems with this testimony are discussed in note 2, supra.
. There are indications in the files reviewed by the court in this habeas corpus proceeding that Bruce'Zemina, the petitioner’s brother, may well have the explanations to some of these mysteries. It is apparently doubtful, however, whether he will ever be competent to testify.
. The prosecution was not slow to act on the gift thus given them:
If Bruce was the sole perpetrator of the crime that is irrelevant because he, Fred, sat on that stand and was under oath and testified that he hit Kenneth Fernen twice. Remember, he said . . . “He was laying on the seat and I struck out with the fist. I didn’t hit him very hard, not hard at all but hard enough so Bruce got loose.” He is participating. That is part of the crime. That is aiding and abetting.