SHAW, District Judge.
Each of petitioners, Michael Reynolds and Martin Reynolds, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2241(a)(c)(3) et seq. Petitioners were indicted by an Essex County Grand Jury on July 23, 1962 for the murder of Fred Garcia, the owner of a store located at 938 Bergen Street, Newark, New Jersey. Mr. Garcia died as a consequence of a bullet wound inflicted by Martin Reynolds on April 1, 1962 while he and his brother, Michael Reynolds, were robbing the store. Petitioners were prosecuted by indictment pursuant to the provisions of N.J.S.A. 2A:113-2 whereby a person engaged in the commission of a felony during which the death of another occurs is guilty of murder in the first degree. It is further provided by N.J.S.A. 2A:113-4 that "every person convicted of murder in the first degree, his aiders, abettors, counsellors and procurers, shall suffer death, unless, the jury shall by its verdict, and as a part thereof, upon, and after the consideration of all of the evidence, recommend life imprisonment, in which case this and no greater punishment shall be imposed."
A jury found each petitioner guilty of murder in the first degree without recommendation of life imprisonment. Thereupon each of petitioners was sentenced to death on November 10, 1962.
Petitioners appealed their conviction in the New Jersey Supreme Court where it was affirmed. State v. Reynolds, 41 N.J. 163, 195 A.2d 449, 1 A.L.R.3d 1438 (1963). Thereafter, certiorari was denied by the United States Supreme Court, 377 U.S. 1000, 84 S. Ct. 1930, 1934, 12 L. Ed. 2d 1050 (1963) and rehearing denied 379 U.S. 873, 85 S. Ct. 23, 13 L. Ed. 2d 81 (1964). Petition for post conviction relief and stay of execution was denied by the Essex County Court on November 13, 1964. The Supreme Court affirmed. State v. Reynolds, 43 N.J. 597, 206 A.2d 750 (1965). Petitioners have exhausted their State remedies and now seek relief in this Court.
Upon independent review of the entire record, the Court finds that all points in issue presented here as well as others were presented in the State Court proceedings and that the pertinent facts are accurately and succinctly stated in the State Court opinions. Hence, it would serve no useful purpose to reiterate the same at length in this proceeding. It might also be noted that due to the recent evolution of principles of constitutional law relating to criminal convictions, the final arguments now pertinent to the questions presented are set forth in supplemental briefs furnished after Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966).
The following contentions merit discussion:
1. Inculpatory statements made while in police custody were involuntary.
2. Introduction into evidence of juvenile offenses committed by petitioner Martin Reynolds and anti-social history of Michael Reynolds was unduly prejudicial and deprived petitioners of a fair opportunity for a verdict of life imprisonment.
3. Inflammatory statements of the Prosecutor during his summation deprived petitioners of a fair trial on the issue of punishment.
4. The charge of the trial court was ambiguous and denied to each of petitioners assurance of a unanimous verdict both on the question of guilt and on the question of punishment.
5. The manner of polling the jury was such that it could not be reasonably determined what the true verdict of each member of the jury was.
The only issue of substance in the trial of petitioners was the degree of punishment to which each would be subjected. The alternates were capital punishment or life imprisonment. It was admitted that the fatal shot was fired by Martin Reynolds and that the crime of murder was committed while he and his brother, Michael, were engaged in the commission of the offense of robbery on the premises of the victim. Counsel for Martin Reynolds stated in his opening:
"Now, you notice I did not say that these defendants would be entitled to an aquittal at your hands. And that very statement is something that I have never said before. I have really delivered the life of the defendant Martin Reynolds, I have handed it up. We do not deny our guilt of an intent to commit a robbery. Martin Reynolds went into that store. Martin Reynolds squeezed the trigger that sent that bullet into the body of Frederick Garcia. But we do deny - and that's why we are here - that this was a wilful, felonious killing, cold, ruthless killing with malice aforethought. And so we are here to test solely the issues of penalty, of punishment. You ladies and gentlemen are the arbiters of the facts in this case. You are the judge of the facts, all of the facts in this case, including the ultimate fact of guilt or innocence, and the still more ultimate fact - if there can be any more ultimate fact - of the awful judgment. You are to determine whether, insofar as my client Martin Reynolds is concerned, whether it is going to be life or death. Now, I can't place it on the line any fairer or any squarer than I have."