Harry William Braley v. Clarence T. Gladden, Warden

This appeal is from an order denying appellant’s petition for habeas corpus. The District Court proceeded under 28 U.S.C. § 2241 , and our jurisdiction is conferred by 28 U.S.C. § 2253 .

Braley is an Oregon state prisoner. In 1958 a jury convicted him of first degree murder. Under Oregon law, ten of the twelve jurors might have returned a verdict of not guilty. In his instructions, the trial judge did not advise the jury of this fact. Furthermore, while a form for the returning of a guilty verdict was supplied to the jury, the court inadvertently neglected to supply the usual form for the returning of a verdict of acquittal. At his trial, Braley did not deny committing the homicide. In defense, he insisted that at the time he was highly intoxicated and, alternatively, that he was legally insane. On appeal the Oregon Supreme Court held that while the omissions constituted error, the error was not prejudicial. State v. Braley, 224 Or. 1 , 355 P.2d 467 (1960). This determination, with which the District Court agreed, was based on the assumption that the jury might have reasonably inferred that ten of its members had the power to return a verdict of not guilty from a portion of the…