notes made at the time indicate that the bullet had mushroomed (N.T. 245). Dr. Wadsworth testified that impact with the hard part of the skull would cause such a bullet to mushroom (N.T. 394).
26. From the very beginning Mr. Del Torre knew that the bullet was 'a very vital exhibit' and so stated (N.T. 231).
27. The Assistant District Attorney who prosecuted Hough, relator and Smith knew all about the bloody bullet before the trial of relator, but deliberately and intentionally suppressed it.
(a) Captain Kelly told him about the bullet, how far from Ingling's head it had been found, and about the fact that it was bloody; the Assistant District Attorney stated to Captain Kelly that in his opinion it was immaterial because under the law all the defendants were responsible (N.T. 405, 406). This conversation took place before the trials (N.T. 401).
(b) Before Hough's trial (N.T. 369), which preceded relator's trial, Detective Morris heard the Assistant District Attorney tell the Captain that in his opinion the bullets were immaterial inasmuch as it was a hold-up (N.T. 365).
(c) At one of the trials, probably the Almeida trial (N.T. 334), Detective Coyne who prepared the case for the District Attorney (N.T. 328) held a conversation with the Assistant District Attorney in reference to the bullet and the Assistant District Attorney told Coyne he would not need the bullet 'whether it came from a police officer's gun or one of the defendants' (N.T. 331).
(d) The District Attorney's office had the report of Detective Ahrndt with regard to the bullet (N.T. 163, 165).
28. When Lieutenant Spangler was about to make his only appearance in the course of the three trials under subpoena by the defense in the trial of Smith (eleven days after relator's trial) the Assistant District Attorney instructed him not to mention the blood on the bullet (N.T. 192). At that trial the Assistant District Attorney rested his case without calling Dr. Lampert, the Chemist, to the stand.
29. With regard to the contention that the evidence as to who fired the fatal shot was immaterial, the following findings are submitted:
(a) In the trial of Smith, Judge Milner charged the jury as follows: (See page 128 of Notes of Testimony before Welsh, J., page 405 of relator's Exhibit No. 4, Smith notes of testimony:
'When fixing the penalty you take into consideration all the circumstances of the case, any mitigating circumstances, and all the facts of the case which you feel bear on the matter of what kind of punishment you should give this man. Was it a cool, unnecessary murder? Or are there some extenuating circumstances; Is it a fact that he shot or didn't shoot a man? And all those things enter into your consideration and should be considered by you in determining the penalty, bearing in mind this disputed part of the evidence, which you must first find, and that the doctrine of reasonable doubt, which I have talked to you about, does not apply in this matter of your fixing the penalty.'
(b) The real issue of relator's trial was which penalty the jury should fix for first degree murder (N.T. 267).
(c) At the trial of relator the Assistant District Attorney in his speech to the jury proceeded on the theory that one of the hold-up men fired the fatal shot (N.T. 266).
(d) The Assistant District Attorney never said that Hough's testimony that relator shot Ingling was immaterial or that the testimony of the Ingling family that Smith shot Ingling was immaterial (N.T. 413, 414).
(e) At the trial of Smith when the evidence as to the bloody .38 caliber bullet and the .45 caliber bullet was offered, the Assistant District Attorney did not object that it was immaterial.
29. Relator has exhausted the remedies available in the Courts of Pennsylvania, including two certiorari petitions to the Supreme Court of the United States.
Conclusions of Law.
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. Darr v. Burford, 339 U.S. 200, 219, 70 S. Ct. 587, 94 L. Ed. 761.
3. The identity of the person who fired the fatal shot was a material question with regard to the penalty to be fixed for first degree murder.
4. It is the law of Pennsylvania that the jury must weigh all the circumstances of the case in fixing the penalty.
5. Under Pennsylvania law error as to evidence affecting the penalty may be reversible error.
6. The Assistant District Attorney deliberately and willfully suppressed at relator's trial material evidence which would have warranted the inference that a uniformed police officer fired the shot which killed Ingling.
7. This was fundamentally unfair and violated the due process clause of the Fourteenth Amendment of the Constitution of the United States.
8. Therefore the Court of Oyer and Terminer of Philadelphia County lost its jurisdiction to proceed to verdict, and judgment of sentence in the trial of relator.
9. The trial, verdict, conviction and judgment of sentence of relator as of Indictment No. 1282, March Sessions, 1947, Philadelphia County, are null and void.
10. Dr. Frederick S. Baldi, Superintendent of Philadelphia County Prison, Joseph C. Reing, United States Marshall, Eastern District of Pennsylvania, and J. W. Claudy, Warden of the Western State Penitentiary, Pennsylvania, have no valid warrant in law further to continue so much of the confinement of relator as is pursuant to the death sentence and they have no warrant to turn him over for electrocution or electrocute him pursuant to that judgment of sentence. This is without prejudice to whatever right may exist under the Constitution of the United States and under Pennsylvania law to try relator anew on Indictment No. 1282, March Sessions, 1947 charging murder. The question of that right, if it exists, is not before this Court.
11. Relator has exhausted the remedies available in the Courts of Pennsylvania, including two certiorari petitions to the Supreme Court of the United States.
The petition for a writ of habeas corpus is granted.