The opinion of the court was delivered by: WELSH
This case was brought into the United States District Court by petition for a writ of habeas corpus. The relator alleges his rights under the 14th Amendment of the Constitution of the United States have been violated. The writ of habeas corpus was the greatest concession wrung from a tyrant king at Runnymede in 1215. Through the centuries it has stamped Anglo-Saxon jurisprudence as a citadel of protection for human rights. It is not technical and does not raise technical questions which are raised by various forms of appeal. It was deemed so important to the founders of our republic that it was written into the Bill of Rights of our Constitution. Its enforcement was left, so far as finality is concerned, to the Federal Courts for reasons which can very well be understood. Federal Courts do not entertain jurisdiction in matters of habeas corpus until all State remedies under State legislation and State Constitutions have been exhausted. The Supreme Court of the United States in setting aside State Acts in violation of the United States Constitution does so only after the highest State tribunal has acted.
In discussing the various features of this case we feel it proper and desirable to refer to the above principle that governs jurisdiction. We do so because of the fact that in recent times there has been a great deal of confusion and misunderstanding on the part of the general public as to why and how these questions come to the Federal Courts for decision. The increase of crimes of violence, the ramifications of the under-world in high and low places, the corruption and debauchery of public officials has so exasperated our people that they have become impatient and highly critical of anything that impedes or delays outraged justice in seeking vindication. We can sincerely sympathize with the public in this attitude and must reluctantly confess that at times we are conscious of the same feelings ourselves. But centuries ago our civilization erected special fundamental safeguards to protect the weak from the strong, the good from the cruelties of the tyrant, the innocent from the crafty cunning of the evil. The outraged justice of the moment and the healthy desire to swiftly punish the criminal must not set aside those safeguards that are necessary for the security of us all. In our many years of experience as prosecutor and judge we have never found a case where it was necessary to violate the constitutional safeguards in order for the State to obtain justice. What is the question raised in this habeas corpus proceeding?
1. On January 30, 1947 the relator, David Almeida, in company with two other men, Edward Hough and James Smith, robbed a super-market on Fairmount Avenue, west of 19th Street. They were armed with guns of the following caliber- two guns of .45 caliber and one of .22 caliber. Shots of .45 caliber were fired in the ceiling of the super-market. The excitement brought a crowd of people and the police and quite a number of shots were fired outside the super-market. The robbers attempted to get away in the automobile provided for that purpose. One of the robbers, Smith, was wounded in the forehead, a flesh would. Officer Ingling was in citizen clothes and had come to the store with his wife to shop. He was near Almeida and during the shooting he fell to the ground instantly killed. A bullet had gone completely through his head. The robbers got away. Hough fell out of the car and was captured. Almeida was arrested some months later in the West after having robbed a bank down in New Orleans. He was brought back for trial. In the meantime Hough had been tried. At the trial of Almeida the State produced a number of lead bullets and fragments of bullets. The Court and Jury were led to believe that all the evidence had been produced before them. But there was one bullet in the possession of the State that the State did not produce. It is upon this bullet that the entire case rests. We will state here that all the evidence produced before us came from the State's own witnesses. Therefore, the State cannot claim that this is a dispute between the evidence produced by the two parties at the trial. Officer Ahrndt testified that he hastily rushed to the scene of the crime and got there shortly afterwards and started to look for every bit of evidence. He found the bullets and fragments of bullets we have referred to above. But about 15 feet from where the head of the unfortunate Ingling was lying he found a bloody lead bullet of .38 caliber. It was not fragmentized but distorted in shape showing that it had come in contact with some hard substance. He carefully wrapped it up in a piece of paper and took it to Officer Spangler at headquarters. Officer Spangler is the ballistic expert of the County of Philadelphia, Bureau of Police. Officer Spangler weighed the bullet, measured it, certified that it was of .38 caliber, and had the State chemist make an analysis of the stains on the bullet. The State chemist officially certified that the stains were bloodstains. The police made proper records of all that they did. Justice and fair play require us to absolve the police of any irregularity or any improper conduct in this whole affair. How far it became their duty to officially inform the trial Judge of this evidence is not for us to say. The District Attorney is properly looked to by the police for guidance and instructions in criminal trials. We leave to the local police authorities the question of how any such incident should it ever arise again should be met.
2. At the Coroner's inquest this bloodstained bullet was not produced nor was any reference made to it in any manner. Neither the Coroner nor the Coroner's physician had any knowledge of it and the Coroner completed his autopsy completely ignorant of this important piece of evidence. The autopsy showed that the bullet that penetrated Officer Ingling's head was .38 in Caliber. It was admitted that the police are armed with this type of gun, .38 in caliber and using a lead bullet.
4. The existence of the bloodstained bullet was not discovered until the co-defendant Smith came to be tried. How counsel for defendant learned of this most important piece of evidence was not brought out. Right here we must call attention to a significant and sinister piece of testimony. At the trial of Smith, Almeida having been tried and condemned to death, counsel for Smith subpoenaed Officer Spangler and Officer Ahrndt who had personal and official knowledge of the bloody bullet. The District Attorney told Officer Spangler that if the defendant's lawyer called him to the stand he was not to say anything about the bloody bullet. The officer protested against such instructions and said he would not do anything of the kind; that he had made his report in writing, and that he had a chemical analysis of the bloodstains, and if he was asked he would state the facts. At the trial of Smith the defense subpoenaed these officers. The Assistant District Attorney put Lieutenant Spangler on the stand but did not interrogate him about the bloody bullet. The defense then brought it out on cross examination of Lieutenant Spangler. Only after that did the Assistant District Attorney put Detective Ahrndt on the stand and ask him about the bullet. It is significant, but not controlling, that the jury that tried Smith, who was a co-defendant in the same murder, having the evidence of the bloody bullet before them found Smith guilty of murder in the first degree, which is in accordance with the law of Pennsylvania.
But they fixed the penalty at life imprisonment rather than death. We want to make it clear that this proceeding under habeas corpus is not to question whether or not under the law of Pennsylvania Almeida should have been recommended for life imprisonment rather than the penalty of death. This Court has nothing to do with that phase of the question. Under the law of Pennsylvania all killings that result from a robbery of this kind are murders in the first degree. But under the Pennsylvania law the jury has the responsibility in a first degree murder of this type of saying whether the defendant merits death or life imprisonment. What the jury does on that question depends upon the facts of the case as submitted to them. Could a jury possibly do its full duty and fairly decide between life and death in a case without having presented to it the facts and history of this bloody bullet? Had those facts been presented to it and had they found the defendant in their opinion deserving of death, there would have been no constitutional question for this Court to pass upon. The sole question is whether or not a prosecuting officer can conceal and withhold from a trial judge and a trial jury evidence which under the law is the very basis of their findings as to whether the defendant should suffer death or life imprisonment. The State claims that he can. But since when have we seen fit in this country to leave such questions to the whim, the caprice, the hatred, or the favor of a prosecuting attorney? Under such a theory a trial would be a farce and justice a jest. It would be a trial by Attorneys General and District Attorneys and not by a Court of Justice. There are several methods by which a prosecuting officer can throw a case or get an unconstitutional conviction. One is by withholding information in favor of the Government, causing a favored defendant to be acquitted. This results in a detriment to the State. Another method of injustice is in the production of false or perjured testimony. We have seen some tragic examples of that in Philadelphia County very recently. Another method, equally monstrous, is to withhold evidence favorable to the defendant. That method was resorted to in this case. Our people are informed through the press that such practices are followed in some other lands and we are justly shocked at some recent instances abroad of political injustice. Yet right here at home we not only have discovered that it was secretly practiced but in these proceedings a Court is asked to impress such a travesty with the stamp of judicial approval and constitutional sanctity. Can an American Court proclaim to the world that this is our concept of due process of law? This is the first time throughout the history of this case that any Court has had the opportunity to pass upon the merits of the question. Now that all the facts, based on sworn testimony, are set forth this Court and Appellate Courts can pass upon the case knowing with certainty what the truth really is.
5. When we consider the multiplicity of criminal offenses due to economic changes in our civilization, when we reflect on the tremendous power of Government to obtain possession, at times exclusive possession, of the evidence in a criminal prosecution, when we consider that the heavy hand of Government can and does seize books, papers, records, and remove them from the very defendants themselves we can realize how important it is to require the Government through its prosecuting officials to have absolute good faith and fidelity to the Court and to the jury trying the case. It is of the utmost importance to every citizen of our country today for the Courts to strike down all attempts to resort to such an unwarranted use of despotic power. Such a policy would leave the trial Judge and Jury not informed of the facts, with no ruling possible by the trial Court or Appellate Court on on matters withheld. Can any one seriously claim that this is in accordance with American principles of justice or that it does not present an unusual reaching for power that is ruthless, arbitrary, brutal and unconstitutional. Again we say, in all our experience over a long period of years in the very office involved (the office of District Attorney) we never knew or heard of such a claim of arbitrary power on the part of the public prosecutor. Such a claim stamps this case as most unusual and brings it in the class of cases subject to Federal review.
In addition to the facts set forth in the foregoing parts of this discussion, which are adopted as final to the extent that they are free of minor inconsistencies, we make the following further
1. The case is extraordinary. Ex parte Hawk, 321 U.S. 114, 118, 64 S. Ct. 448, 88 L. Ed. 572.
2. The circumstances were exceptional and the urgency peculiar when the jurisdiction of this Court attached (the hour fixed for execution was imminent). Darr v. Burford, 339 U.S. 200, 219, 70 S. Ct. 587, 94 L. Ed. 761.
3. The wound of entrance in the bony structure of Ingling's head was ten millimeters in diameter (N.T. 391).
4. This wound could not have been made by a .45 caliber bullet, a bullet of that size being too large in diameter (11.2 or 11.4 millimeters) (N.T. 182).
5. It is apparent that the would was caused by a .38 caliber bullet (approximately 9 millimeters) (N.T. 181; arithmetically .38 caliber seems to be 9.6 millimeters. Calibration is in the terms of inches and millimeters are simply the same thing expressed in the metric system).
6. The wound was not caused by the .22 caliber weapon of Smith. A .22 caliber bullet is 5.6 millimeters in diameter (N.T. 181, 182).
8. The .45 caliber automatic of Hough was not fired during the crime or outside the Market (N.T. 198, 205) and its bullets were too ...