Before HASTINGS, Chief Judge, and SCHNACKENBERG and KILEY, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Ward Lane, warden of the Indiana State Prison, respondent, appeals from an order of the district court which granted a petition of Kenneth Rogers, petitioner, for a writ of habeas corpus and discharged him from the custody of respondent. But the district court also ordered that petitioner be detained in the custody of respondent pending this appeal.
In 1946 petitioner was charged in an Indiana state court in a three-count affidavit with second degree burglary, automobile banditry*fn1 and being an habitual criminal. A trial was held which resulted in jury verdicts finding petitioner guilty of second degree burglary and automobile banditry and a verdict that petitioner had been twice before convicted of a felony - once in 1932 and once in 1928. The court had instructed the jury, inter alia, as follows:
"Every person who, after having been twice convicted, sentenced and imprisoned in some penal institution for felony, whether committed heretofore or hereafter, * * * shall be convicted in any circuit or criminal court in this state for a felony hereafter committed, shall be deemed and taken to be an habitual criminal, and he or she shall be sentenced to imprisonment in the state prison for and during his or her life."
However, the jury of its own volition submitted the following additional verdict:
"We, the jury, find the defendant not guilty of being an Habitual Criminal."
Thereafter the court sentenced petitioner as follows: Imprisonment of two to five years for second degree burglary, twenty-five years for automobile banditry and life as an habitual criminal.
It has been stipulated by respondent that service of the first two sentences has been completed and that petitioner is now held solely by virtue of his sentence as an habitual criminal.
In his petition filed in the district court petitioner charged that his imprisonment as an habitual criminal is in violation of the equal protection of the law and due process clauses of the fourteenth amendment to the United States constitution. He contended that the Indiana state constitution, article 1, section 19, gives the jury in criminal cases "the right to determine the law and the facts" and that rejection by the trial judge of the general verdict of not guilty on the habitual criminal count deprived "the petitioner and the jury of the jury's 'right to determine the law and the facts' on that issue". With this contention we cannot agree.
The provisions of article 1, section 19 have been construed by the Indiana Supreme Court, which in Beavers v. State, 236 Ind. 549, 559, 141 N.E.2d 118 et seq., 236 Ind. 549, 141 N.E.2d 118, 123 (1957) said:
"A jury has no more right to ignore the law than it has to ignore the facts in a case. * * * a verdict of guilty that is not supported by the facts or one that is contrary to law may be set aside by a court. * * *"
At 562, 141 N.E.2d at 124, the court added:
"To insist that the jury should 'not be limited, restricted, controlled, or influenced or hampered by the court or legislature in the full, free, and voluntary exercise of the jury of their sole constitutional right * * *,' to determine the law, would in ...