The opinion of the court was delivered by: MARSH
The relator, Cleveland Thompson, was convicted of murder on January 20, 1950, and the death penalty was imposed. For a history of prior proceedings see D.C., 103 F.Supp. 776; affirmed, 3 Cir., 203 F.2d 429; certiorari denied 1953, 345 U.S. 960, 73 S. Ct. 946. He subsequently filed a petition for a writ of habeas corpus in the Supreme Court of Pennsylvania, alleging that the prosecuting officers suppressed evidence favorable to him. The petition was denied without a hearing. He then filed a petition for a stay of execution in the Supreme Court of the United States. The Supreme Court, after reviewing a proposed petition for certiorari, denied the stay.
On this state of the record, we found that he had exhausted his state court remedies. We were persuaded that if the allegations of the petition were proved, a federal question involving due process was presented. See United States ex rel. Almeida v. Baldi, D.C.E.D. Pa. 1951, 104 F.Supp. 321, affirmed, 3 Cir., 1952, 195 F.2d 815. We, therefore, out of an abundance of caution, issued a stay of execution, ordered the District Attorney of Allegheny County to answer the petition, and set the case down for hearing. The relator's contention that he was denied due process is without merit.
After hearing and upon due and careful consideration, the court enters the following
2. There are those who might have testified that relator was intoxicated at the time of the killing
and shortly thereafter,
as well as at the time of the arrest.
3. Immediately prior to his arrest, relator was involved in a barroom brawl. Bobbie Richardson, the bartender, described the scuffle wherein three men subdued Thompson and took his gun- the murder weapon. Richardson stated the scuffle lasted from two to five minutes and that in the melee all of the participants fell to the floor. As a result relator's shirt was torn, he was perspiring profusely, and he was in a thoroughly disheveled condition when arrested.
4. After Thompson had been subdued, Patrolmen Stanley W. Dubis and William H. Heagy, in answer to a telephone call, arrived and took relator in a police car to No. 2 Police Station. Later Heagy transported him to No. 1 Police Station. Heagy had to subdue Thompson on this trip.
5. Both Heagy and Dubis noticed an odor of alcohol about the relator. Heagy concluded, from his observation, that relator was in a crazed condition and insane. Bubis, on the contrary, concluded that the relator was perfectly normal and so testified at the trial. It is apposite to note that he was not then cross-examined as to Thompson's condition. At the habeas corpus hearing he testified that Thompson meekly submitted to arrest and conveyance to No. 2 Police Station; he did not accompany the prisoner to No. 1 Station.
6. George W. Purvis, a police officer assigned to the homicide division, saw the relator about midnight. Relator was standing up and holding on to the bars of his cell. He talked to Purvis but his statements were so confused that the police officer decided to postpone the routine interrogation. This observation was incorporated into a lengthy report filed by Homicide Officers Purvis, Coyne and Corcoran, a copy of which was sent to the District Attorney's office prior to trial.
7. A pretrial conference was held three days prior to trial. This conference was attended by members of the homicide squad, Patrolmen Heagy and Dubis, and a number of witnesses.
8. Heagy testified that at this conference he gave to Strauss a detailed description of the relator's appearance at the time of his arrest and the events that transpired afterward. Heagy further testified that he told Strauss that relator was in a crazed condition and insane. He testified that he repeated the foregoing to Strauss in the hall of the courthouse while the trial was in progress.
9. Strauss denied that this officer had ever said anything to him which indicated that the relator was irresponsible and he denied that the officer had given him a detailed description of the relator's appearance and condition.
10. There is no evidence that any one heard Heagy so inform Strauss at the hearing or at any other time ...