Karl Hines Narten v. Frank A. Eyman, Superintendent of Arizona State Penitentiary

ORDER ON PETITION FOR REHEARING AND SUGGESTION FOR HEARING IN BANC

Following the filing of the petition for rehearing and the suggestion for a hearing in banc, Judge Hufstedler was se *192 lected by lot in place of Judge Pope, deceased.

The panel as then reconstituted voted, two to one, to deny the petition for rehearing. Judge Hufstedler voted to grant the petition for rehearing. The panel voted unanimously to reject the suggestion for a hearing in banc.

All judges in active service having been supplied with copy of the suggestion for hearing in banc, and no judge having voted to hear the case in banc,

It is ordered that the petition for rehearing is denied and the suggestion for hearing in banc is rejected.

This is an appeal from a judgment of the district court, after hearing, denying a writ of habeas corpus sought by a state prisoner awaiting execution for the crime of murder, and serving a life sentence for the crime of assault with intent to commit murder. We affirm.

The appeal presents the following questions:

1. Did publicity, prior to and during the trial, deprive the appellant of a fair trial and an impartial jury in the trial of his case?

2. Was the prosecution of appellant, by information without an indictment by *186 a grand jury, a violation of the Fifth Amendment of the United States Constitution ?

3. Was there a denial of due process, equal protection, and the right not to plead guilty and demand a jury trial, where the state jury has the power to assess the death penalty in a capital case without hearing evidence solely in mitigation of punishment, while on a guilty plea to a state judge the court may hear such evidence?

4. Was the exclusion, under the M’Naghten rule, of expert testimony concerning appellant’s alleged diminished mental capacity a violation of due process ?

5. Was there a violation of a privileged communication between appellant and his wife, and…

460 F.2d 184 Karl Hines NARTEN, Appellant, v. Frank A. EYMAN, Superintendent of Arizona State Penitentiary, Appellee. No. 22249. United States Court of Appeals Ninth Circuit. April 15, 1969. Rehearing Denied June 13, 1972. William H. Tinney (argued) and W. Edward Morgan, Tucson, Ariz., for appellant. Carl Waag (argued) Asst. Atty. Gen., Darrell F. Smith, Atty. Gen., Gary K. Nelson, Asst. Atty. Gen., Phoenix, Ariz., for appellee. Before POPE * , HAMLEY and CARTER, Circuit Judges. JAMES M. CARTER, Circuit Judge. 1 This is an appeal from a judgment of the district court, after hearing, denying a writ of habeas corpus sought by a state prisoner awaiting execution for the crime of murder, and serving a life sentence for the crime of assault with intent to commit murder. We affirm. 2 The appeal presents the following questions: 3 1. Did publicity, prior to and during the trial, deprive the appellant of a fair trial and an impartial jury in the trial of his case? 4 2. Was the prosecution of appellant, by information without an indictment by a grand jury, a violation of the Fifth Amendment of the United States Constitution? 5 3. Was there a denial of due process, equal protection, and the…