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Sn tc Beet eae Meet EAD Re ON TES EN, A ge cata aed OO TET 46 Sheppard v. Maxwell No. 16077 suggestions, we consider that the case made in the District Court is before us and we have considered and found without merit the other claims of constitutional. vice in the judgment convicting Dr. Sheppard. One further subject should be briefly mentioned. Dr. Sheppard’s petition claimed that the evidence at his trial was constitutionally insufficient to justify submitting the issue of guilt or innocence to the jury. This claim was neither withdrawn nor sustained upon the hearing in the District Court. On this subject, the petitioner’s brief states, § ¢ “The District Judge expressly declined to consider this issue . . . , although in all fairness it should be stated that counsel for petitioner-appellee on several occasions offered to waive this claim of error. . . . No waiver was required, however, and the issue remains, This Court no doubt has the power, since the trial transcript is before it as an exhibit from the District Court, to search the record and conclude that the allegation of insufficiency is well-taken.” (Emphasis supplied.) We construe this as a suggestion that we pass upon this point only if we find in his favor. Counsel continues as follows: “Appellee neither asks nor urges such relief, for he is ready, willing and anxious to stand retrial in any community not infected with an envenomed atmos- ‘phere, and a favorable ruling upon this issue would cause jeopardy to attach to the 1954 trial. This is not, however, to be taken as any concession that there was sufficient evidence to constitutionally support a judg- ment of conviction in the first instance, for we vigor- .ously contend that there was not. We simply do not . press it at this time.” So The Court of Appeals decision, affirmed by the Ohio Supreme Court, fully discussed the evidence and found it sufficient for submitting the issue of guilt to the jury. 100 Ohio App. 345. No claim is made here that that court’s detailed recital of the evidence adduced at the trial is substantially erroneous. Without attempting to assess | No. 16077 Sheppard v. Maxwell 47 petitioner’s actual guilt or innocence, this recital clearly establishes that Dr. Sheppard’s conviction is not “so totally devoid of evidentiary support” as to constitute a denial of due process. Garner v. Louisiana, 368 U.S. 157, 163 (1961); Thompson v. City of Louisville, 362 U.S. 199 (1960) ; Hall v. Crouse, 339 F(2) 316 (CA 10, 1964). Petitioner apparently desires to save something for a further entry into or a rehearing in the District Court. We think that Ohio’s appeal has brought the entire habeas corpus proceeding to us. We have passed upon it and do not find any basis for the release of Dr. Sheppard or the granting of a new trial. Conclusion. There is today no uncertainty that it is proper and, indeed, obligatory that Federal Courts see to it that no state shall convict or imprison anyone without that due process of law which the United States Constitution de- mands. This duty must be discharged, even at the risk of appearing arrogant in setting aside a judgment approved by all the courts of a particular state. In the context of the case before us, however, we will not be considered delinquent if we give proper respect to the carefully con- sidered decisions of the Ohio courts and attribute to those courts power to discern and protect the constitutional rights of an accused at least approaching our own. Cer- tainly the District Judge who heard this case gave to its study the labor, the conscientiousness, and the commend- able concern for the accused’s constitutional rights which we like to think are typical of our Federal judiciary. We fear, however, that this admirable zeal led him to go beyond permissible limits to find constitutional fault in what was done by the Ohio courts. The facts of this case do not add up to any of the situations in which the Supreme Court of the United States or any United States Court of Appeals has found it appropriate to strike down a judgment af- firmed by the highest court of a state. The order and judgment of the District Court is reversed _ with direction to discharge the writ and remand the peti- tioner to the custody of the respondent. Serer eer eta me nnecn tery