Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.
A jury sitting in the Court of Oyer and Terminer of Allegheny County, Pennsylvania found relator-appellant guilty of murder in the first degree and recommended the death penalty. The conviction and the death sentence were affirmed by the Pennsylvania Supreme Court.*fn1
The first time the matter came into the federal court was on application for habeas corpus which alleged incompetence of defense counsel. We affirmed the denial of the writ by the district court.*fn2 Thereafter, following various other steps in the cause, another petition for habeas corpus was filed in the district court. The ground urged was the withholding and suppressing of vital testimony favorable to relator at his trial by the Commonwealth. After hearing the court denied the petition. On appeal we remanded the case to the district court for a finding of fact whether the court credited the testimony of police officer Heagy or the prosecutor as to what the former told the latter before trial concerning the condition of the accused at or about the time of his arrest.*fn3 In pursuance of this the district court [123 F.Supp. 761] made further findings of fact, particularly that:
"2. Mr. Heagy did inform the prosecutor that he participated in the arrest of the relator in a barroom where the latter had been in a brawl and had been disarmed. He further informed Strauss, as the latter admits, that the relator was at that time under the influence of liquor to a quarrelsome degree; that he smelled the odor of alcohol on him; that his shirt and clothes were torn; and that he was perspiring and 'messed up.'
"3. The prosecuting officers did not communicate to defense counsel or to the State trial judge prior to trial that, at the time of relator's arrest, several police officers detected the odor of alcohol on relator's breath; that he showed signs of having been engaged in a fight; and that at least one officer would say he was under the influence of liquor to a quarrelsome degree."
The court also made an additional conclusion of law, namely:
"The prosecuting officers were not in possession of information or evidence vital to relator's defense which they were obliged to disclose to the defense or to the court."
The court, citing our decision in United States ex rel. Almeida v. Baldi, 3 Cir., 1952, 195 F.2d 815, 33 A.L.R.2d 1407, certiorari denied, 1953, 345 U.S. 904, Baldi v. U.S. ex rel. Almeida, 73 S. Ct. 639, 97 L. Ed. 1341, quite properly states: "The suppression of evidence may be a denial of due process when it is vital evidence, material to the issues of guilt or penalty." 123 F.Supp. 759, 762. See also United States v. Rutkin, 3 Cir., 1954, 212 F.2d 641, 644-645.
The important question before us is whether the district judge erred in holding as a matter of law that the withheld and suppressed evidence was not vital to the defense of the accused.
The prosecution had alternative theories: (1) that Thompson had committed the killing of Wallace Russell, the bartender, at a place called the "Barbary Coast", in the course of an armed robbery; or (2) that Thompson wilfully and with premeditation killed said Wallace Russell. The defense, while admitting the killing, denied any robbery motivation and contended that Thompson through drink and drugs was in such a mental state that he could not have formulated the necessary intent to raise the killing to first degree murder and that in any event, because of his condition, his offense did not warrant the death penalty. Thompson's testimony was to that effect. One prosecution witness, Mattie Spells, to some extent corroborated him but on a plea of surprise as to another matter the Commonwealth impeached her credibility. One eye witness to the shooting testified that Thompson did not appear intoxicated. The Commonwealth also produced the bartender at the place where Thompson was arrested, and he testified that there was nothing wrong with Thompson, that he was not drunk, and that his eyes were normal and not glassy. The only police witness questioned as to Thompson's condition was the other arresting officer, Dubis. He said Thompson was "perfectly normal" and "perfectly all right in every respect". He said nothing regarding an odor of alcohol on Thompson's breath and when asked how he knew he was all right, he replied "The man walked out with me. I have arrested many a drunk, if you are referring to that."*fn4
None of the other police officers who were witnesses at the trial said anything about Thompson's condition or relating to an order of alcohol on him. Officer Heagy, though subpoenaed by the Commonwealth as a witness and present at most of the trial, was not called to the stand by the prosecutor. He was actually excused by the prosecutor from attendance at the night session of the trial at which Dubis testified. Heagy therefore did not hear that testimony nor, according to him, hear about it until long after the trial. Thompson was arrested within approximately four hours of the shooting. The Commonwealth argues from this that Heagy's testimony is irrelevant because it is too remote. The proofs do not justify that contention.
The shooting occurred in the Barbary Coast somewheres around 7:00 o'clock in the evening of September 13, 1949. The Commonwealth produced three eye witnesses who said that they were eating fish sandwiches and drinking soda pop at the time of the shooting. According to their testimony they saw no one in the Barbary Coast drinking intoxicating liquor.*fn5 One police officer who had made an examination of the premises the night of the shooting, testified: "There was no evidence of beer or liquor. Nothing outside of three empty cases of soft drinks."*fn6 According to Thompson, however, the only drinks served at the Barbary Coast were "moonshine whiskey and a glass of water." He testified at the trial that he had started drinking in the Barbary Coast around 3:00 o'clock that afternoon; that prior to the shooting he had drunk at least four pints of moonshine whiskey "drinking pint for pint" and in addition had been smoking marijuana which he bought "from a guy peddling it in there."*fn7 He said he imagined he smoked about four marijuana cigarettes during the time he was there.*fn8 He said that at the time of the shooting "I was under the influence of everything."
In the interval between the shooting and his arrest there was testimony at the trial that Thompson visited the home of Mattie Spells around 8:00 P.M. and asked for a loan of two dollars. Mattie Spells testified that she never saw him looking like he did that night. "His eyes were glarey. He wasn't himself at all. * * * He looked like he was under the influence of something that particular night." There was also testimony that he walked right past the police station and, shortly after 10:00 o'clock that night,*fn9 arrived at the Triangle Bar which was some nine or more blocks from the Barbary Coast and "all up hill."*fn10 At the Triangle, he was observed "sliding up and down the bar" and taking a "tuck at his coat" where the bartender observed his gun. The bartender called the police. Meanwhile Thompson had asked another patron for a cigarette (even though Thompson had seven on him when arrested) and ...