United States v. Ashe

• Citation: 2 F.2d 735
• Decision Date: 17 November 1924
• Docket Number: No. 6.,6.
• Parties: UNITED STATES ex rel. VALOTTA v. ASHE, Warden of State Penitentiary.
• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania

2 F.2d 735 (1924)

UNITED STATES ex rel. VALOTTA v. ASHE, Warden of State Penitentiary.

No. 6.

District Court, W. D. Pennsylvania.

November 17, 1924.

George R. Wallace, Franklin A. Ammon, and Thos. D. Chantler, all of Pittsburgh, Pa., for relator.

Samuel H. Gardner, Dist. Atty., and Harry A. Estep, Asst. Dist. Atty., both of Pittsburgh, Pa., for the Commonwealth of Pennsylvania.

THOMSON, District Judge.

I approach the decision of this case with a full appreciation of the importance of the issue involved — the right of the state, on the one hand, to insist that the prosecution and punishment of offenders against her laws be in no manner impeded or denied, and the right of the citizen, on the other, to insist that his life be not taken away, except by due process of law. From the final judgment of a sovereign state, condemning him to death, a citizen of the United States, humble in birth and station, through the ancient writ of habeas corpus, appeals to the supreme law of the land. Such an issue, not infrequent, in the administration of the law, challenges at once our most careful, conscientious, and fearless consideration.

The real issue involved will appear by a brief statement of the facts as disclosed by the record of the trial. Joseph Valotta, the relator, a naturalized citizen of Italian birth, had been working steadily at the machine shops of the Pennsylvania Railroad in Pittsburgh for about seven years. He was a man of good reputation for peace and good order. On July 1, 1922, a strike occurred at the railroad shops, which continued for several months. Valotta remained at work. By October 1st its activities had largely subsided, but the strike was not fully ended for a considerable period thereafter. During July and August, at least, the shops were picketed at intervals by the strikers, and the shops and workmen were guarded by mounted police. For some time officers escorted the workmen to and from their homes. At least on one occasion some demonstration of violence occurred at the works, at which Valotta was present, and to whom it appears to have been at least partially directed. Shortly afterwards he purchased a revolver from an officer inside the plant. Assaults on workmen at different times occurred, and the situation appears to have alarmed Valotta to such an extent that he ran from the shops to his house near by, on leaving work, and had not gone out of his home at night for about four months prior to the night of the shooting.

On the night of October 30th he went across the street to a party at his godmother's, where some friends, musicians, were playing. As he was about to leave, near 11 o'clock, at the request of a friend, Palermo, Valotta took the musicians over to another house, where there was a christening. Near 1 o'clock Valotta and Palermo, with others, left the house; Valotta and Palermo starting down Irwin avenue, a leading thoroughfare, on their way home. Freedmore street, which is one block in length, extends from Irwin avenue to Brighton road, and is intersected in the middle of the block by McCullough alley. On the corner of Irwin and Freedmore, three men were standing, Thomas Hopkins, Brady, and Rodgers. Brady was one of the strikers, or at least had left work on account of conditions, shortly after the strike was called. These three men had been together from 10:30 o'clock in the morning, and had been drinking heavily through the day and night. When they stopped at Irwin and Freedmore streets, they were intoxicated and disorderly, as was evidenced by loud talking, singing, and wrestling on the sidewalk. Officer Couch notified Hopkins to go home, which he failed to do. Another man, Conoran, joined the other three on the corner near 1 o'clock. The night was dark and foggy, and there was no light where the men were standing. As Valotta and Palermo approached Freedmore street, they crossed Irwin for the purpose of going down Freedmore, and in doing so walked out in the street past the point where the men were standing, and reached the sidewalk on Freedmore street a short distance beyond the corner.

As to precisely what occurred there is some conflict, the defendant claiming that Hopkins called them scabs, and threatened to kill Valotta, as he advanced toward him. But it is clear that after the men had passed the corner, proceeding on their way, Hopkins called to the men, going out into the street, and approached them, using his hands in a threatening manner. When a few feet away, it is testified that Valotta said, "What are you looking for — trouble?" and, pulling out his revolver, fired. Hopkins fell, mortally wounded. Valotta and Palermo started running down Freedmore. Policeman Couch, who was near by patrolling his beat, hearing the shot, pursued the fleeing men; Brady and Rodgers joining in the chase, the officer being in the lead. The officer gained on Valotta, but did not call on him to stop, or announce that he was an officer. When within a short distance of the fleeing men, Valotta suddenly fired four shots in quick succession, all of which struck the policeman. He sank to his knees, but rose again, continuing for some distance, where he fell some 200 feet from Irwin avenue. There was a light at McCullough alley, near where the shooting occurred. Couch was removed to the hospital, where he died the following day.

After the shooting, Valotta and Palermo continued their flight; Rodgers and Brady failing to overtake them. Valotta went home, throwing away his revolver as he went, left his home between 9 and 10 o'clock, concealed himself in a brickyard not far away, stayed with different friends in Pittsburgh for several nights, and then went to Pitcairn, a nearby town, to the home of an acquaintance, where he was arrested a few days later. When arrested, he did not deny the shooting, told the policeman where he had thrown the revolver, and, when taken by the officers to the scene of the killing, pointed out the various spots connected with the homicide.

Two indictments charging murder were found against Valotta, the one for the killing of Couch and the other for the killing of Hopkins; the former being No. 17, and the latter No. 19, February sessions, 1923. Each indictment contained a count for murder and for voluntary manslaughter. The prisoner was arraigned on each indictment, and to each he pleaded not guilty. Valotta being without money, the court appointed counsel to defend him. The cases were called for trial on March 12, 1923. An examination of the docket entries of the cases would lead to the conclusion that the cases were separately tried. The record at each number shows the convening of the court, the arraignment, the plea, the joinder of issue, the reading of the indictment, the instructions of the clerk to the jury, the list of jurors challenged, the jury made up and sworn, and list of witnesses for the commonwealth and for the defendant, and the verdict of the jury. As a matter of fact, the cases were called by the district attorney before the same jury at the same time, all the testimony of the commonwealth as to both homicides being offered, and, when completed, the commonwealth rested. A verdict of murder in the first degree was returned by the jury for the killing of Couch, and a verdict of murder in the second degree for the killing of Hopkins. The court charged the jury with relation to both indictments, submitting to them the possibility of eight several verdicts, namely, murder in the first degree, murder in the second degree, voluntary manslaughter, or not guilty, in each case; the jury being instructed to find a separate verdict in each.

The record does not disclose, nor does it appear, that there was any offer by the commonwealth, or any order of court, to consolidate the indictments, any consideration by the court as to the right or the propriety of trying the cases together, any exercise of discretion by the court in relation thereto, any putting of the commonwealth to an election as to which case it would try, any suggestion to the defendant as to his right to a separate trial, any consent on behalf of the defendant or his counsel to a joint trial on the two indictments, or any notice to the defendant of his right to 20 peremptory challenges under each indictment.

The legality of a single trial on the two indictments was raised by the defendant in his fourteenth reason for a new trial, as follows: "(14) If, in the mind of the prosecuting attorney, Joseph Valotta committed two distinct and separate homicides, and the double homicides of Couch and Hopkins were two distinct and separate acts of the defendant, then it was unlawful for the commonwealth to try Joseph Valotta on two distinct and separate indictments before the same jury." The court said: "This reason is without merit." The court then cites the case of Withers v. Commonwealth, 5 Serg. & R. (Pa.) 59, in support of his ruling.

The same question was again raised in the Supreme Court by an assignment of error (279 Pa. 84, 123 A. 681) in the same language as that above quoted. This was disposed of by the appellate court in the following words: "The fifth attack made on the integrity of the verdict is that it was improper to try the defendant upon the two indictments at the same time. The record shows that he made no objection to being thus tried. Assuming, but not deciding, that, notwithstanding his failure to object on trial, he can now be heard to raise the question, the simultaneous trial on two indictments charging murder is warranted, and the finding of guilty in the second degree on one indictment does not affect the first degree conviction on the other. Commonwealth v. Brown, 264 Pa. 85."

The judgment was affirmed, and a subsequent motion for reargument was overruled. The two cases referred to by the trial and appellate courts I will refer to later. It thus appears that, if the prisoner was denied a fundamental right in being called to answer to separate indictments before...