
    Application of Mellott FAUST for a Writ of Habeas Corpus.
    Civ. No. 1337.
    United States District Court E. D. North Carolina, Raleigh Division.
    Feb. 15, 1962.
    
      Charles V. Bell, Charlotte, N. C., and P. H. Bell, Plymouth, N. C., for petitioner.
    T. W. Bruton, Atty. Gen. of North Carolina, Ralph Moody and Harry W. McGalliard, Asst. Attys. Gen., for respondent.
   LARKINS, District Judge.

This is a petition for a Writ of Habeas Corpus submitted by a prisoner being held in the custody of the North Carolina State Prison Department in Central Prison, Raleigh, North Carolina. He was convicted of murder in the first degree in the death of a police officer. In his petition it is alleged that the failure of the trial court to grant a non-suit as to first degree murder at the close of the presentation of the State’s case, and the failure to give requested instruction to the jury, was a sufficient violation of the due process clause of the Fourteenth Amendment as to render petitioner’s conviction upon trial unconstitutional under the United States Constitution.

This matter coming on to be heard before this Court at a hearing on January 4, 1962 at New Bern, North Carolina, it was stipulated and agreed between counsel for petitioner and counsel for the State of North Carolina that the presence of the petitioner Mellott Faust at the hearing was not necessary, and his presence was waived.

It appearing to this Court, and the Court having found as a fact that the questions presented by petitioner as to whether the trial court was in error in refusing to grant a non-suit at the conclusion of the State’s evidence, and in refusing to give certain requested instructions to the jury were questions of state law; and

It further appearing to this Court that the North Carolina Supreme Court having upheld the trial court on these questions of state law, State v. Faust, 254 N.C. 101, 118 S.E.2d 769, this Court will not disturb the findings of the North Carolina Supreme Court on the questions of state law.

Therefore, this Court finds as a matter of law that the due process clause of the Fourteenth Amendment to the United States Constitution has not been violated in the trial of the petitioner; that the conviction of the petitioner in the trial court was constitutional; that the petitioner was not denied due process of law as provided by the Fourteenth Amendment to the United States Constitution; that the petitioner is not entitled to the Writ of Habeas Corpus prayed for.

It is therefore ORDERED that the petition of Mellott Faust for a Writ of Habeas Corpus be and the same is hereby denied.  