dissenting.
I would reverse the judgment below on the basis of Judge Boyer’s conduct. The central facts against which this conduct must be viewed are that: (1) Zeitz, not petitioner, did the actual killing on which petitioner’s trial was based, and (2) petitioner’s participation in the robbery being uncontested, the only real issue at his trial was whether he should suffer the death penalty or life imprisonment, which, under the Pennsylvania statute, was a question for the jury. If these facts be kept in mind, I think that the Court, in holding that the case presents no violation of due process, has disposed of Judge Boyer’s conduct too lightly.
The Court states that the general atmosphere of the trial was not prejudicial, that Judge Boyer’s remarks to the Foster-Zeitz jury raise no substantial due process questions, and that we should not disturb the District Court’s findings that the alleged note-passing incident did not occur and that Judge Boyer’s participation in the trial was limited to the “sidebar” episode.' Accepting this, as I do, it does not end the matter for me, for there still remain these undisputed facts, and the inferences which I think should be drawn from them: The crime was a particularly atrocious one, and Judge Boyer shared *468the community sense of outrage over it.1 The trial took place in a small rural community of which Judge Boyer had been a respected member for many years, and he was presumably known to the jurors, at least by reputation. Judge Boyer, as it is fair to assume the jurors knew, had presided over the Foster-Zeitz trial in which the jury, three days before petitioner’s trial began, had returned a death verdict against two of petitioner’s associates in this crime.2 Judge Boyer remained in the courtroom at petitioner’s trial beyond the call of duty, and his presence there on some days after other matters had been disposed of was wholly unexplained. On such occasions he sat not with the ordinary spectators, but sometimes on the bench *469and other times within the bar in full view of the jury. The “sidebar” conference, in which Judge Boyer participated, was in sight of the jury. Judge Boyer was in the courtroom during the court’s charge. From these admitted facts, I consider that the jury must have been conscious of the unusual interest which Judge Boyer had in the case, and that it might well have concluded that he felt the defendant should be dealt with severely.
Having regard to the character of the issue with which the jury was confronted, I think these undisputed facts, and the inferences which may be drawn from them, require us to hold that the petitioner has been denied due process. I cannot say that the support lent to the prosecution by Judge Boyer’s manifest interest in the trial might not have tipped the scales with the jury in favor of a death verdict, and in a capital case I would resolve that doubt in favor of a new trial. The reasons for my conclusion are those which Judge Kalodner has well stated in his dissenting opinion in the Court of Appeals, 224 F. 2d 504, 509. We should be especially scrupulous in seeing to it that the right to a fair trial has not been jeopardized by the conduct of a member of the judiciary.
In imposing sentence in a case tried during petitioner’s trial, Judge Boyer said (as reported by a local newspaper the next day):
“We don’t propose to nail all our property fast here in Bucks county just because thieves from Philadelphia want to pick up everything which isn’t being watched. . . . What business did you have to come up here in the first place? . . . Have you heard what’s going on downstairs [referring to petitioner’s trial] ? . . . Do you want to wind up like that? . . . We in Bucks county are tired of you Philadelphians who don’t know how to behave. We have to bear the expense and we propose to stop it.”
Since petitioner’s jury had no access to this newspaper, these statements could not have affected his trial. But they are indicative of Judge Boyer’s sentiments, and of community reaction.
The local newspaper reported the following on the day after the Foster-Zeitz trial ended:
“Judge Boyer Praises Jury for Verdict Condemning 2 Killers to Electric Chair
“ T don’t see how you could, under the evidence, have reached any other verdict,’ Judge Boyer said.
“ ‘Your verdict may have a very wholesome effect on other young men in all vicinities who may come to realize the seriousness of the folly in which so many young men indulge these days.
“ ‘The only hope of stemming the tide of such crime by youth is to enforce the law which you have indicated by your decision,’ Judge Boyer said.”