Earl Warren: Number 323, United States of America on the relation of David Darcy versus Earl D. Handy. Mr. Lawley, you may proceed.
Frank P. Lawley, Jr.: Thank you, Your Honor. At the close of yesterday's argument, Mr. Justice Frankfurter asked me the question as to whether the question of Judge Boyer's statements and actions had been raised before the Supreme Court of Pennsylvania. The answer, sir, is yes and the Supreme Court stated in its opinion that it could find nothing in the statements or actions to indicate anything prejudicial to the petitioner.
Felix Frankfurter: The judgment was on the merits this morning.
Frank P. Lawley, Jr.: Yes, sir, yes, sir. And in answer to the Chief Justice's question as to whether the District Court made findings of fact. There were two judges who sat in the District Court. Judge Murphy and Chief Judge Watson both conquered in the findings of fact contained in Judge Murphy's opinion. They stated that he had failed to prove his allegations and they concluded that he had -- that he had received a fair trial. On the first broad allegation of hysteria and prejudice, Darcy was represented at that trial by experienced trial counsel. The District Court found as a fact that he knew in March the trial was in June. He knew in March that it was the intention of the Commonwealth to start Darcy's trial immediately after that of his coconspirators, yet we find that there was no motion or change of venue nor for a continuance and that --
Tom C. Clark: When did they sever the case?
Frank P. Lawley, Jr.: I beg your pardon.
Tom C. Clark: When did they sever the case?
Frank P. Lawley, Jr.: In March, in March, sir.
Speaker: In March?
Frank P. Lawley, Jr.: Yes, sir. In determining the significance of the failure to ask for a change of venue or a continuance, we cite Mr. Justice Clark's statement in Stroble versus California wherein he stated that to determine the significance, to determine whether there was history and prejudice, he thought it was significant that two deputy public offenders in Los Angeles had not requested a change of venue. And a similar statement is contained in United States versus Rosenberg in the Second Circuit. Chief Judge Swan there stated that if counsel did not realized the importance of newspapers at the time, there is no reason to believe that the jury did either. We have in our brief, beginning on page 39, charted the procedural facts of the three cases, Stroble, Rosenberg and Darcy. In the three, we note that in Stroble the question was first raised immediately on motion for a new trial. Here, the question was not raised until present counsel raised it some two years later. He now makes a statement that it was where the Court sua sponte to move to change the venue. We say that this cannot be done. Under Pennsylvania law, a defendant has a right to trial by a jury of the (Inaudible) and for the State or for the Court to have changed it, would have denied him of this constitutional right. Further, our Constitution provides that the Court shall have the power to change venue under the provisions of the law. The law, the statute states that venue may be changed on application of the defendant.
Felix Frankfurter: Is your -- have your court any power to deal a trial by a newspaper for the trial in court?
Frank P. Lawley, Jr.: No, sir. If -- if the defendant would raise the question, yes, we do have the power to change the venue if the defendant feels that the newspapers are unduly exciting the people. Here, there was no manifestation at his trial that in any way, shape or form, the newspapers had created an atmosphere of hysteria and prejudice. There is no situation here akin to Moore versus Dempsey, Frank versus Mangum or any of those. The District Court so found and specifically the Court of Appeals affirmed that finding. There is no showing, there is no proof that the jury was in fact influenced in anyway by any newspaper article. There, the proof is that the jury, as a jury, after selection read nothing that they were segregated. They were kept free from access to any forms of communication.
Felix Frankfurter: I understand. They were segregated after the trial began?
Frank P. Lawley, Jr.: After the trial began --
Felix Frankfurter: Were kept together.
Frank P. Lawley, Jr.: Kept together under the supervision of four tipstaffs and --
Felix Frankfurter: Is that your -- is that the practice (Voice Overlap) --
Frank P. Lawley, Jr.: Yes, sir, Yes, sir.
Felix Frankfurter: Living in a hotel I suppose.
Frank P. Lawley, Jr.: Yes, sir. They live in a hotel, took their meals in a group and they were in the -- under the supervision of these persons at all times. They were --
Felix Frankfurter: Not to read papers?
Frank P. Lawley, Jr.: Not to read papers, no radio, television or anything else. The --
Tom C. Clark: That was on the date the trial began?
Frank P. Lawley, Jr.: Yes, sir.
Tom C. Clark: June 7.
Frank P. Lawley, Jr.: Yes, sir.
Tom C. Clark: What about this allegation that -- on the front-page of the paper I think, Intelligencer, or something like that.
Frank P. Lawley, Jr.: Yes, sir. The --
Tom C. Clark: The statement of Judge Boyer, is that his name?
Frank P. Lawley, Jr.: Yes, sir. Judge --
Tom C. Clark: That would have been on what day?
Frank P. Lawley, Jr.: That would have been on Friday or Saturday prior to June 7.
Tom C. Clark: In other words, that would have been available to this prospective jurors in the Darcy case.
Frank P. Lawley, Jr.: It -- it would have been available, yes, sir. May I point out that first there is no proof that they did in fact read it. Secondly, I would like to point out that the intelligence, sir, has a circulation or did have at that time of approximately 5000 in a county of over 100,000 population. Next, I would like to point out that we have printed the voir dire examinations of the jurors printed as an appendix to our brief. The record today is the same as it was on -- in June of 1948 as to what the jurors did read. There's no proof that they read anything more or anything less than what is contained in their voir dire examinations.
Earl Warren: But there are any challenges for cause denied in this proceeding?
Frank P. Lawley, Jr.: I -- I don't know, sir. I don't believe there were challenges for a cause. There were --
Earl Warren: Do you say that all their peremptory challenges?
Frank P. Lawley, Jr.: No, sir. They use 10 of the 20 allowed by law. The peremptory challenges were no exhausted.
Tom C. Clark: Because they would have known that Judge Boyer was going to participate in the case at that time, would they?
Frank P. Lawley, Jr.: No, sir, if at the time they did not know that he would be present at all in the courtroom other than counsel would know that he will be present in the morning in the opening of Court and if I may I'll explain that just a little later on in my argument.
Tom C. Clark: You're going to get into it.
Frank P. Lawley, Jr.: Yes, sir. I'm going to go into it.
Speaker: Could you conveniently give me the page reference in the record to that newspaper statement that Judge Boyer's quoted in?
Frank P. Lawley, Jr.: Yes, sir.
Tom C. Clark: It's in the 1071 (a).
Frank P. Lawley, Jr.: Yes, sir. I would like to point out further the question of hysteria and prejudice was not raised on direct appeal. When counsel -- when trial counsel was assisted by Thomas D. McBride, the present Chancellor of the Philadelphia Bar. As to the articles --
Felix Frankfurter: So that I may know. Mr. McBride is part of the trial counsel or merely on appeal at the first time.
Frank P. Lawley, Jr.: On appeal, sir. He was not trial counsel. The trial counsel was Mr. Achey, who is dead and Mr. Power and they were engaged --
Felix Frankfurter: Mr. McBride took it up.
Frank P. Lawley, Jr.: Mr. McBride took it up in association --
Felix Frankfurter: That's that is so connected.
Frank P. Lawley, Jr.: Yes, sir. That's the end and then Mr. Margiotti took over from there. If I may serve -- serve the papers themselves, the District Court specifically found that the newspaper articles were factual in nature. The editorials to which the counsel for the petitioner refer, there were nine during the period upon which he relies. In point of time, they range from three days after the crime until a day before the trial. Only two of these refer to the defendants and then the reference is indirect. The allegation here is that there was an out of court campaign to secure the death penalty for the defendants. We say it is difficult to determine how there was such an out of court campaign in view of the fact that Exhibit 42 contained on page 998 (a) of the record concludes that if these defendants are sent away for impressive periods, it should discourage forays into the county. If -- we submit -- if it was an evidence of a campaign to get the death penalty, the statement to send away for impressive periods has no -- no meaning. Further, the editorials refer to professional jurors in Philadelphia, they refer to crime in general but there is no campaign proved. There has been no campaign proved to secure a death penalty for these persons. His -- in -- in fact in main, his argument is that the adjectives used in the story were prejudicial to the defendant. The facts as to these adjectives that they were bandits and so on came out at his trial as they did in Stroble versus California. There the adjectives used, we submit, where much worst and much more widespread because we were dealing there with Metropolitan papers of the City of Los Angeles where a werewolf, fiend, sex mad killer and so on. The facts came out at the trial and this Court held -- affirmed the judgment in that proceeding. He further states -- petitioner further states that there was an alleged feeling in the community against these people, against these defendants. He stated yesterday that I call witnesses from all walks of life to show this. Seven witnesses were called. There was an aunt of one of the conspirators. There was the sister of Darcy, (Inaudible), an attorney for Zeitz who is now dead, a friend of the family, a doctor who examined Darcy and who wrote a letter to the governor seeking clemency and two preachers. The testimony of these persons as the District Court found was not oriented as to time, as to place, or the person on -- in our attempt to bring it out from whom they heard this, we clearly unsuccessful. They could not say when they heard it, where they heard it or from whom they heard. But even so, Reverend Damroach stated that even under the facts that he heard he was not willing to say that there was prejudice against these people and that's contained in the record. And Reverend Babinski, at the time when the hysteria and prejudice was supposed to be sweeping the county, after this heist trial, he stated that there were no expressions of threats or violence and that there was no change of feeling. There was indignation, yes and we submit that there would be a strange community where there would not be in the indignation.
Felix Frankfurter: Mr. Lawley, the jury in this case were they drawn generally from the countryside of maybe from Doylestown.
Frank P. Lawley, Jr.: From the countryside, sir.
Felix Frankfurter: So that these were people who would be really in the countryside (Inaudible)
Frank P. Lawley, Jr.: Yes, sir. The jurors answers on the voir dire contained in our appendix, we submit, indicated that there was no fixed opinion. This Court has held that the mere reading of the newspapers alone does not disqualify and that there was no indication that they would not decide this case on the facts and the evidence presented.
Speaker: How long did the jury take reach the verdict?
Frank P. Lawley, Jr.: Jury was out several hours. Sir, we'll get that reference and I'll give that to you before I sit down.
Felix Frankfurter: And maybe at length may of course be attributable to the (Inaudible) ruling that you recommend.
Frank P. Lawley, Jr.: That is possible, sir. I -- I have no way of knowing.
Felix Frankfurter: (Voice Overlap) nobody knows that.
Frank P. Lawley, Jr.: That's right, sir.
Felix Frankfurter: Where you have choice before the jurors that one of most eccentric provision.
Frank P. Lawley, Jr.: And in Pennsylvania they determine not only the guilty essence, the degree but also the penalty when it is murder case. The fact --
Earl Warren: On the trial was it contented that this man --
Frank P. Lawley, Jr.: No.
Earl Warren: -- was innocent or -- or just that he shouldn't -- should not have the death penalty inflicted.
Frank P. Lawley, Jr.: He pleaded not guilty, sir, but the entire proceeding is an indication that there was an attempt only to save him from the chair. As a matter of fact, present counsel on page 7 of this brief, states that he did engage in a robbery and while fleeing a person was shot and under the law of Pennsylvania that is murder in the first degree. So that the question was for the -- as to the penalty alone and Mr. Farrier, an attorney for our for our coconspirators stated in the District Court that he got into the case solely with the idea of saving Zeitz or saving his client from the chair.
Felix Frankfurter: You have degrees of murder in Pennsylvania, are there not?
Frank P. Lawley, Jr.: Yes, sir.
Felix Frankfurter: The court in charging the jury to allow them to find second degree murder?
Frank P. Lawley, Jr.: Yes, sir.
Felix Frankfurter: So with that issue presented before the court --
Frank P. Lawley, Jr.: Yes, sir.
Felix Frankfurter: -- the jury?
Frank P. Lawley, Jr.: Yes, sir.
Earl Warren: Well, the -- yesterday it was stated the -- that counsel for the defendant did not protect his rights in the -- in the courtroom. Is there any finding on that subject to the character of the lawyer disability?
Frank P. Lawley, Jr.: Yes, sir. On page 28 of our brief in a footnote, we set forth the statement as to Mr. Achey as -- as contained in the opinion of the lower court. In addition, the Supreme Court of Pennsylvania also found that Mr. Achey was a good lawyer and in the District Court and in the Court of Appeals -- the Court of Appeals when they send it back for hearing on the question of hysteria and prejudice specifically stated that you could not go into the question of the counsel, the -- the competency of this man.
Felix Frankfurter: Now, why would they held that they found -- that claim was unfounded?
Frank P. Lawley, Jr.: It was unfounded, yes,sir.
Felix Frankfurter: We couldn't go into it but affirmatively they found that it was a negative thing to charge (Inaudible) --
Frank P. Lawley, Jr.: Yes, sir. The -- the --
Felix Frankfurter: The whole -- all you're seven circuit judges agreed on that?
Frank P. Lawley, Jr.: No, sir. Five of them did, five of the seven. Justice Biggs or Judge Biggs --
Felix Frankfurter: I don't mean on -- on that particular thing.I thought the whole court agreed on (Voice Overlap) --
Frank P. Lawley, Jr.: I -- I believe --
Felix Frankfurter: -- I maybe wrong.
Frank P. Lawley, Jr.: I believe that two of them Judge Biggs and Judge McLaughlin.
Felix Frankfurter: (Voice Overlap)
Frank P. Lawley, Jr.: I think they all agreed that the affidavits of juror should be stricken form the record.
Tom C. Clark: Of course Darcy selected the counsel himself.
Frank P. Lawley, Jr.: Darcy selected the counsel and then you had his counsel within, I think, five days after the crime. He was represented by his own counsel, Darcy's family selected the counsel and he was represented by this man from the time of the five -- shortly after the crime until the time of trial and thereafter, a period of six months or more after the trial -- he still continue to represent it.
Earl Warren: He had two lawyers, didn't he?
Frank P. Lawley, Jr.: He had two lawyers, Mr. Power as the -- as evidence indicated in the court below in the District Court, Mr. Power, although a younger man had considerably experience and was a good trial lawyer.
Hugo L. Black: You started to say something about what the other two judges.
Frank P. Lawley, Jr.: Judge -- Judge Biggs and Judge McLaughlin felt that they should be alive to go into the question as to the adequacy of counsel upon remand. The five -- the -- the remaining five did not. They found affirmatively that the record indicated that he had been adequately represented and they cited Justice Minton's opinion in Weber versus Ragen in the Circuit Court.
Felix Frankfurter: Of the five, there were these two who did say as to Boyer, Judge Boyer there, inhibitions for inquiring (Inaudible)
Frank P. Lawley, Jr.: Yes, sir they did.
Felix Frankfurter: (Inaudible)
Frank P. Lawley, Jr.: Yes, sir. Mr. Margiotti yesterday mentioned the question of TV. First of all, I would like to point out that there is evidence of TV coverage that we stipulated in the District Court as to the only films presented. Darcy was on the screen, ten seconds. The group of the four defendants was on the screen, 15 seconds. Other than that, there is no showing of any other TV coverage. There is no showing of the number of -- of TV sets back in 1947. There is no showing that any of the jurors had TV sets. In short, there may have been coverage of a -- of a slight amount in connection with the news story but certainly nothing that would create any hysteria or prejudice.
Hugo L. Black: What part of the trial did the television cover?
Frank P. Lawley, Jr.: Prior to trial, the arrest, sir.
Hugo L. Black: Prior to the trial?
Frank P. Lawley, Jr.: Yes, sir. The picture was shown either in the end of December of 1947 or in January of 1948 and the trial was not until June.
Hugo L. Black: When was the murder?
Frank P. Lawley, Jr.: December 23rd, 1947.
Hugo L. Black: When was the television?
Frank P. Lawley, Jr.: Either immediately after the testimony is somewhat conflicting. Either immediately after the commission of the crime or in January of 1948.
Stanley Reed: How -- how did it occur after arraignment or after the arrest or what?
Frank P. Lawley, Jr.: The film itself was not accompanied by any sound. We have no way of knowing what was said. There -- there is an indication that it was shown in Philadelphia at the time when the officer, the police officer who apprehended this individual received an award, a medal so to speak.
Stanley Reed: When was it taken? Where was it taken?
Frank P. Lawley, Jr.: It was taken outside of a -- of a courthouse or a jail as I recall sir.
Stanley Reed: After their arrest.
Frank P. Lawley, Jr.: After their arrest but in any event was published to.
Stanley Reed: At any rate not in the courtroom at the trial?
Frank P. Lawley, Jr.: Oh, no sir, no sir.
Speaker: I don't want to interrupt you but I hope you leave plenty of time in you argument to deal with Judge Boyer.
Frank P. Lawley, Jr.: I'm getting to Judge Boyer right now, sir. First, I would like to state that he died prior to the District Court hearing. The same and as I stated before the same question were presented to the Supreme Court of Pennsylvania and further that on direct appeal this counsel did not raise any question as to Judge Boyer. The District Court found that the allegations concerning him had not been proved. Mr. --
Felix Frankfurter: Would you mind stating what you deemed freely uncontroverted facts about Judge Boyer's comment during the trial.
Frank P. Lawley, Jr.: All right, sir.
Felix Frankfurter: (Voice Overlap) which you think -- either you challenge, what you think all should be deemed uncontroverted.
Frank P. Lawley, Jr.: The uncontroverted facts concerning Judge Boyer I believe to be this. First that the morning sessions and the afternoon sessions when Court convened he was on the bench, the reason for that is it was the practice in Bucks County at that time that prior to the start of any trial or what was going on in that courtroom, they had a miscellaneous session where there were motions rule to show cause and so on. The evidence says that sometimes, immediately, upon the conclusion of the miscellaneous session, he left the bench. In other times, Judge Keller, the presiding judge stated that he remained on the bench and listened to the evidence. The uncontroverted evidence further is that at onetime --onetime during the trial he did participate at sidebar in a ruling on evidence on a difficult question as characterize by the trial judge, the difficult of question of evidence. It was at sidebar, the District Court specifically found that it was out of the hearing of the jury.
Felix Frankfurter: When you say he did participate, you mean he and Judge Keller conferred of Judge Keller asked him?
Frank P. Lawley, Jr.: They -- they conferred and it is on the trial record that he did make a statement to counsel and counsel objected after which Judge Boyer withdrew from the bench.
Hugo L. Black: Have objected to what?
Frank P. Lawley, Jr.: Objected to him participating in the ruling and he withdrew and -- and left it back.
Hugo L. Black: You know what page that is?
Frank P. Lawley, Jr.: It's --
Hugo L. Black: You don't what --
Frank P. Lawley, Jr.: It's 803 of the original record, sir. It's contained in this --
Stanley Reed: Is that in the opinion of the District Court denying the petition?
Frank P. Lawley, Jr.: Yes, sir -- yes, sir.
Stanley Reed: 1191 (a), yes.
Frank P. Lawley, Jr.: That is -- that is in the opinion of the District Court. It is also on the trial record and --
Felix Frankfurter: When you say, he left the bench then went to what you called the sidebar with reference to this arrangement (Inaudible)
Frank P. Lawley, Jr.: What -- what --
Felix Frankfurter: (Voice Overlap) what you mean by that?
Frank P. Lawley, Jr.: What we mean by a sidebar in Pennsylvania. Let us assume that the Chief Justice and Mr. Justice Black were sitting alone. At anytime in Pennsylvania, when we desired to converse out of the hearing of the jury, counsel for both sides approach the bench and in some cases lean over, the Court reporter if necessary comes up and puts his machine or invoked on the bench. Then the conferences held either a emotion or an argument on the question that it's on. The -- upon the conclusion then you come back into open Court and again speak in such tone that the jury can hear it.
Felix Frankfurter: Now, when you say he left the bench?
Frank P. Lawley, Jr.: He -- he left the bench, I mean that he went out of the bench, went off to the bench and either into his chambers or into another courtroom, the evidence --
Felix Frankfurter: You may -- you mean that the sidebar, meaning he -- it was conducted, he was on the bench for doing business in the way (Voice Overlap) --
Frank P. Lawley, Jr.: Yes, sir.
Felix Frankfurter: All right.
Frank P. Lawley, Jr.: Yes, sir. The --
Tom C. Clark: Both -- both judges where on the bench?
Frank P. Lawley, Jr.: Both judges where on the bench at that time, yes, sir.
Tom C. Clark: The counsel came up, they were presenting a confession, were they not, attempting to tie in a confession and when counsel objected by Judge Boyer said, "Well, if you're wrong, that's permissible” something like that. And then counsel said, "Well, objected that for you and take a part in the trial."
Frank P. Lawley, Jr.: Yes, sir. And then the evidence says Judge Keller statement under the 22 -- Section 2254. His state was that Judge Boyer left the bench and that no other time in the trial assisted him in the conduct of the case. That was the evidence and that was -- as it was found --
Felix Frankfurter: Is that all -- is that all this is? You're going on?
Frank P. Lawley, Jr.: I'm going on, sir.
Felix Frankfurter: All right.
Frank P. Lawley, Jr.: Further --
Earl Warren: Before you -- before you go on from there. What was the ultimate ruling on that matter they were arguing there by Judge Keller? Was it in favor of the defendant or was it against him?
Frank P. Lawley, Jr.: It was against him. They -- they admitted -- they admitted it but the question was never raised -- the ruling was never challenged on appeal by anybody. As a matter of fact the correctness of ruling is not challenged even today.
Tom C. Clark: Your rules or statute permits two judges sit in the case?
Frank P. Lawley, Jr.: Yes, sir. In certain counties -- may I -- may I it put it this way. Historically, in oyer and terminer courts, it was required there would be two judges. Some of our statutes, old statutes provide that in certain counties you had to have two judges. Today, in counties where there is not a separate judicial district where the population is small so that one judge serves two counties. It is required that there be a lay judge, not learned in the law, a lay judge who also must sit with the -- what judge learned in the law to conduct a trial. The -- there's a reference to it in our brief, an article by President Judge (Inaudible) the former President of Pennsylvania Bar Association wherein he details the history of two judges presiding at a trial. Further --
Earl Warren: That -- that in capital cases also?
Frank P. Lawley, Jr.: The -- the old statutes requires that it be done in -- in capital cases in certain counties. They have been so -- so as they wiped out with the exception of the counties wherein the judge is not sitting in that county alone.
Felix Frankfurter: What is the security in the Bucks --
Frank P. Lawley, Jr.: In Bucks County one judge is all that is necessary. There is no prohibition for having more than one judge.
Felix Frankfurter: But when this objection was made, Judge Keller, who is the presiding judge, was he at this trial?
Frank P. Lawley, Jr.: Judge Keller was the presiding judge. Yes, sir.
Felix Frankfurter: When this objection was made you didn't say that Judge Boyer makes it on the bench (Inaudible)
Frank P. Lawley, Jr.: No, sir.
Felix Frankfurter: Evidently, Judge Boyer (Inaudible) It was not within the statute for him to continue this case.
Frank P. Lawley, Jr.: As I recall Judge Boyer's remark, sir, he said something that he knew nothing that would --
Felix Frankfurter: No. This as to the interest of it your telling, when he counsel with Judge Keller regarding the motion or something. Objection was made and in response to that objection, he left (Inaudible)
Frank P. Lawley, Jr.: Yes, sir.
Felix Frankfurter: Right?
Frank P. Lawley, Jr.: Yes, sir.
Felix Frankfurter: One made it further (Inaudible). I'm not drawing anymore interest to that at the moment.
Frank P. Lawley, Jr.: As I recall, sir. He said --
Felix Frankfurter: Is that right?
Frank P. Lawley, Jr.: No, sir. As I recall, he said that he felt that he had the right to be there.
Felix Frankfurter: But He did leave.
Frank P. Lawley, Jr.: But he did leave.
Felix Frankfurter: So, evidently he thought that there is far wisdom of this case.
Frank P. Lawley, Jr.: Yes, sir.
Felix Frankfurter: (Inaudible)
Frank P. Lawley, Jr.: That's right, sir.
Felix Frankfurter: How do we know what the matter of law regarding which he joined in the ruling, was it a matter as to which -- it wasn't a question of right or wrong but a question discretion of the trial judge.
Frank P. Lawley, Jr.: Yes, sir.
Felix Frankfurter: So that the discretion might have been exercised one way or the other without any evidence.
Frank P. Lawley, Jr.: Well, it was on a ruling on evidence, sir and --
Felix Frankfurter: You don't know what the particular subject matter to do with it.
Frank P. Lawley, Jr.: Yes, we do know, sir. I will get that point of view --
Felix Frankfurter: (Inaudible) happened in the rest of the uncontroverted evidence.
Frank P. Lawley, Jr.: All right. So now, the uncontroverted evidence further shows that at short times he sat as a spectator in the courtroom --
Felix Frankfurter: How many days to try a case?
Frank P. Lawley, Jr.: A whole week including one night session. That at times he sat as a spectator in the courtroom, not as a special chair as contained in the opinion of -- the dissenting opinion in the Court of Appeals. The -- the testimony is conflicting as to exactly where he sat, the indication is he always sat in various chairs as a spectator. He was in street clothes. If I may refer you to page 1120 -- 1121 (a) of the record, you will note the chair at the bottom of the isle sort of in the center -- lower center of the picture. That is one of a roll of chairs immediately in front of the rail and the testimony is that at sometimes he sat on that chair, and other times he sat on other chairs on that railing. You can get some idea of the prospective by turning to page 1120. Another view of the courtroom, the chair would be at the extreme left end of the picture.
Felix Frankfurter: What -- what is that -- for whom is that chair dependent? It seems to be rather conspicuous (Voice Overlap) --
Frank P. Lawley, Jr.: It's for the tipstaff, sir.
Felix Frankfurter: Tipstaff.
Frank P. Lawley, Jr.: The --
Felix Frankfurter: Now, would you mind telling us how the size -- the relative size of the courtroom? Wouldn't be as big as this one, would it?
Frank P. Lawley, Jr.: Just about, sir.
Felix Frankfurter: As big as that?
Frank P. Lawley, Jr.: Just about --
Felix Frankfurter: (Inaudible)
Frank P. Lawley, Jr.: In an --
Felix Frankfurter: (Inaudible)
Frank P. Lawley, Jr.: In an amphitheater style, sir. There is a map also contained on page 1131 (a) of the courtroom.
Tom C. Clark: Why don't you tell me what is a tipstaff?
Frank P. Lawley, Jr.: A person who is detailed either the keyboarder or tipstaff in charge of the jury as to -- to keep the jury together to keep them in order.
Speaker: (Inaudible)
Frank P. Lawley, Jr.: To quiet persons who might be making some noise and so on.
Felix Frankfurter: They're called a marshal in federal courts.
Speaker: Yes.
Frank P. Lawley, Jr.: Yes. Now, as to the controverted evidence concerning Judge Boyer, on the note passing, the alleged note passing --
Felix Frankfurter: How many -- before you move on. Is the -- does the record disclosed or did it read or otherwise established how many sessions of that weeks trial.He was in the room as spectator.
Frank P. Lawley, Jr.: The evidence is not clear. We cannot agree on, the District --
Felix Frankfurter: But you agree on the minimum?
Speaker: But the Court of Appeals said at page 1249, the majority opinion, it now appears that every day of this trial Judge Boyer spends sometime on occasion several hours in the courtroom, he even attended the evening session.
Frank P. Lawley, Jr.: That would be true insofar as it relates to his being on the bench at the beginning of the day. The District Court found that he was not present at the night sessions. Specifically, found that he was not present at the night session. I was dealing in answer to Mr. Justice Frankfurter's question. I was dealing with his presence as a spectator.
Felix Frankfurter: Mr. Lawley is there any light on this asset. I fully understand what the -- he was the presiding judge of the county and he would open the court on which to make it (Inaudible) in the morning. I take it I would infer from that that you can do that before the jury in the Darcy case. Took its seat on the bench or these all mixed up, all part and parcel, and Judge Keller sat there whether he tried the Darcy case and Judge Boyer sat with him, the two of them did.
Frank P. Lawley, Jr.: The evidence in the case that the jury was in the box during the transaction of the miscellaneous business. After that, he went away and the evidence also indicates that he was trying cases in another courtroom.
Felix Frankfurter: But you -- I gather from what your -- your answer, let's say (Inaudible). I gather from what you say that we cannot tell on the basis of the record, minimum number, unquestioned number of sessions during which he was in court while the Darcy trial at such was on?
Frank P. Lawley, Jr.: No, sir.
Felix Frankfurter: I'm not asking the length of time he sat but actually his purpose.
Frank P. Lawley, Jr.: As a spectator, no, sir. I do not believe that we can.
Felix Frankfurter: Then you say -- then you say it couldn't have been more than one surprise, and can we say anything about it?
Frank P. Lawley, Jr.: I -- I don't know, sir. I don't know.
Speaker: (Inaudible)
Frank P. Lawley, Jr.: No, sir, no, sir.
Felix Frankfurter: Is it the practice for a judge who is not actually trying a case or attend as a spectator?
Frank P. Lawley, Jr.: Yes, sir. I don't think there's anything unusual on that in Pennsylvania and the judge sitting in -- as a matter of fact, I just concluded one last week where one judge was presiding and another was sitting in the courtroom as a spectator.
Felix Frankfurter: (Inaudible)
Frank P. Lawley, Jr.: That was a -- malfeasance in office, a perjury and --
Felix Frankfurter: He was just interested.
Frank P. Lawley, Jr.: He was interested. He sat in as a spectator in street clothes over in the other side room, away from the jury the same as this one and I don't think that there was anything wrong with that nor do I think there's anything wrong with this.
Felix Frankfurter: (Inaudible) but you say it was in view of performance?
Frank P. Lawley, Jr.: For at -- to sit as a spectator?
Felix Frankfurter: No. A case in which a judge at trying cases were deeply obviously within the engagement and (Inaudible) authority in the county to sit rather (Inaudible)
Frank P. Lawley, Jr.: May I correct one thing, president -- Judge Keller was the president judge. Judge Boyer was the junior member of the bench. I can't answer the question as to whether it would be unusual because I do know that it is a practice for a judge to sit as a spectator.
Tom C. Clark: Was that on the Bench?
Felix Frankfurter: Will you dismiss it as argumentative or established that Judge Boyer was the first to consider this apart from the fact that any of your judges could have it?
Frank P. Lawley, Jr.: We will agree that he was respected. We'll agree with Mr. Margiotti's statement that he was well respected. We -- we say that that's a two-edged sword that the fact that he was respected is -- is in it of itself some evidence that he would not engage in this as his -- in his allegation. In answer to Justice Clark's question, I -- I said before that in some counties it is required. In Bucks County, I don't think that it is the usual facts.
Tom C. Clark: You know of any case in Bucks County during the trial of the case before a jury in which two judges sat ang (Voice Overlap) --
Frank P. Lawley, Jr.: I --
Tom C. Clark: -- rule on --
Frank P. Lawley, Jr.: I personally know of none, sir, no.
Tom C. Clark: You're not --
Frank P. Lawley, Jr.: I'm not from Bucks County. I'm from the Attorney General's office in Harrisburg.
Tom C. Clark: Has there ever been a challenge in the state courts before it went to one judge sitting with another?
Frank P. Lawley, Jr.: No, sir. Not that I know of. I've been unable to find a case wherein the question has ever been raised. Mr. Margiotti states that it was -- in his brief that it's unprecedented to have more than one judge. I find that there are cases where there are two judges. There is one case, as a matter of fact, where they raise the question as to only one judge sitting when there should have been a lay judge present in addition to the judge.
Hugo L. Black: You know whether the practice has been different in the country counties than what it is in cities?
Frank P. Lawley, Jr.: In the country counties, yes. Two judges, especially in a real small counties two judges are required under our law. You cannot hold a murder trial with only one judge.
Felix Frankfurter: Well, that is not uncommon (Inaudible) time, two judges was required (Inaudible)
Frank P. Lawley, Jr.: They were in ours, even in Allegany County back in the 1840, sir. Our law now says that one judge shall constitute anywhere in term. It does not say that only judge. Further, as to the note passing, there is an allegation made that during the charge of the Court the -- Judge Boyer wrote a note, passed it to the District Attorney who jumps up as one person said and went over in front of the judge waited for him to finish his paragraph of his charge and -- and then spoke to him with reference to the alleged contents of the note. First, there is no proof as to what this note was supposed to have contained. Secondly, the District Court specifically found that the note was not passed. Third, the Court of Appeals majority refused to disturb that finding. Fourth, Judge Murphy found that he was not even present at the time. Next, there is a conflict in the testimony among Darcy's own witnesses as to how this alleged event was supposed to have occurred and we set that out to considerable detail beginning on page 63 of our brief. The three persons who testified as to this were a brother of Darcy, an aunt of Darcy and a friend of the family. The three persons, two of whom related to the defendant testified that this occurred significantly enough, even though they testified that they have been talking about it for six years. They did not bring it to the attention of trial counsel nor to the attention of appellate counsel. We submit that the possibility of recent invention is there. If this was such a great disturbing thing, would they not have brought it to the attention of counsel for their brother or there nephew as the case might be.
Tom C. Clark: What did the District Attorney testified?
Frank P. Lawley, Jr.: The District Attorney testified that he had no recollection of this occurring. On cross-examination by Mr. Margiotti, he stated that to his best recollection it did not occur.
Tom C. Clark: He went -- he didn't deny it flatly.
Frank P. Lawley, Jr.: He didn't flatly denied. Judge (Inaudible) is now a judge in that county was -- it was six years before he is testifying as to his recollection. He would not be categorical yes or categorically no. He said to the best of his recollection it did not occur. Further --
Earl Warren: Was this charge -- was this charge of the note passing made before or after Judge Boyer died.
Frank P. Lawley, Jr.: It was made at the time -- at the same time as his participation. That would be before he died but at the time it was made he was extremely ill, he -- as a matter of fact, Judge Boyer, I don't believe ever knew of the allegations against it. He died, he never testified anywhere. The --
Tom C. Clark: He was very well know of course. How long he'd been selected as judge?
Frank P. Lawley, Jr.: He's been there almost two complete terms of ten years each.
Tom C. Clark: Was he a former District Attorney or some other official?
Frank P. Lawley, Jr.: I believe he was, sir. Yes, sir, he was a former District --
Tom C. Clark: Well known for jurors.
Frank P. Lawley, Jr.: He's also a former United States Attorney.
Tom C. Clark: Yes.
Stanley Reed: You speak of the findings of the trial of the habeas corpus?
Frank P. Lawley, Jr.: Yes, sir.
Stanley Reed: They -- they come without findings expressed by the Court is it not?
Frank P. Lawley, Jr.: They're not set out one, two, three, no, sir. But they're in the opinion of the District Court and the appendix to the opinion of the District Court are specifically does contain the findings. After the -- after the opinion came down, counsel for a petitioner requested that the -- raised that the requested findings of fact be affirmed or denied. That was done in an appendix to the opinion that is contained in the record.
Stanley Reed: As I see on 1242 (a) of the appendix to the opinion which I take it is a way to define the findings of fact?
Frank P. Lawley, Jr.: Yes, sir. I'm afraid so, sir. The -- in addition to the discussion contained in the opinion in chief. The opinion is quite lengthy, typewritten ran about 50 pages.
Stanley Reed: Are there any of the requested findings that were granted one way or the other that will show the product of Judge -- Judge Boyer?
Frank P. Lawley, Jr.: The -- the findings relative to Judge Boyer by the District Court were that he did sit --
Stanley Reed: I know --
Frank P. Lawley, Jr.: You mean as to the note passing?
Stanley Reed: Can I read what those findings of fact were?
Frank P. Lawley, Jr.: No, sir. Not without fact report. Further, I would recall --
Stanley Reed: Where the 1242 (a) is the key to it?
Frank P. Lawley, Jr.: Yes, sir. 1242 (a) is the key to the opinion on the findings of fact. Further, I stated that the three witnesses were conflicting in their testimony as to how this alleged occurrence took place. The Court -- the District Court thus was confronted with a -- a conflict of testimony -- testimony by persons interested in the outcome -- critically interested in the outcome it involved a relative and the district judge found that it did not occur and the Court of Appeals refused to disturb that finding. Judge Keller stated that on the sidebar, after the sidebar conference, Judge Boyer did not in any other way assist him in the conduct for the trial, the inference there being that he did not assist through the passing of the note to the District Attorney.
Felix Frankfurter: Mr. Lawley, may I come to you to -- turning to page 1253, Volume 4 of the record in which Judge Kalodner summarizes what he in quotes from the statement -- what he call the factual findings and Judge Hastie's opinion on behalf of the majority of the Court of Appeals and indicated to wield which one of those factual findings as they call you would say not valid to be taken by (Inaudible) factual findings.
Frank P. Lawley, Jr.: The -- the --
Felix Frankfurter: It's only italicized --
Frank P. Lawley, Jr.: Well, the italicized things, sir --
Felix Frankfurter: I take it Judge Kalodner -- I haven't checked it out but I am assuming quoting correctly.
Frank P. Lawley, Jr.: I -- I think he is, quoting correctly from the majority.
Felix Frankfurter: (Voice Overlap) to the liability of what the majority --
Frank P. Lawley, Jr.: Yes, sir. There is one conflict, the -- there's the difference between the District Court and the Court of Appeals, the third line that he ever -- he even attended an evening session that the District Court specifically found that he did not. The question at times during the trial judge who adjoined him on the bench for whispered consultations within view of the jury, the evidence and the finding by the District Court is that at one time it occurred. The question during Judge Keller's charge to the jury, Judge Boyer sat facing the jurors within the enclosure reserved for the members of the bar. The District Court found that he was not even there during that occurrence.
Felix Frankfurter: Does that made the view of -- view of the fact, charged him on that, would that mean that one has to go back to what the District Court found to see whether they find him or justifying on the record?
Frank P. Lawley, Jr.: No, sir. We do not believe --
Felix Frankfurter: (Voice Overlap) members of the Court of Appeals can reach -- make those statements on a case that's contested in this Court and carefully considered by the Court of Appeals. I assume if one had -- I assume that one categorically say, it undoubtably was.
Frank P. Lawley, Jr.: Yes, sir.
Felix Frankfurter: Is that right?
Frank P. Lawley, Jr.: Yes, sir. I -- I think that they consider very well. I just wanted to point out that the --
Felix Frankfurter: (Inaudible)
Frank P. Lawley, Jr.: -- that's the difference.
Felix Frankfurter: I understand your answer. But my question is, do that mean I have to search the record to see what the District -- District Court finding were against the evidence which led the Court of Appeals to reject it or that he just -- I should read the record. (Inaudible) unless I have to.
Frank P. Lawley, Jr.: The -- the -- if I may, sir. I think first, the District Court findings are supported by the record. Secondly, I think the Court of Appeals in -- in considering it did not specifically go in and check in to find what evidence there was or was not as to his specific findings. If I may further point out in this note passing incident, the tipstaff sitting immediately behind the jury on the other side of the courtroom stated that it did not, that no note was passed. The District Attorney stated that he was seated on another table during a majority of the charge. But an even more importance, there is no evidence here that this jury, and isn't that the important question as to whether this jury saw any note passed. During a charge of a Court, where is the jury looking? At the trial judge listening to the matters that he is giving them, the charge that he is giving him on the evidence and on the law. The jury is faced, is sitting on onside of the courtroom facing the judge in the center of the room, the occurrence was supposed to have taken place in the extreme other side of the courtroom. We submit that first it did not occur. Secondly, if it did, there's no showing that the jury in anyway saw it. And thirdly, there is no showing that they were in anyway prejudice by it.
Felix Frankfurter: The latter you can't show it. It's humanly impossible to expect the jury to say, "Yes, we were adversely did (Inaudible) by the fact that Judge Boyer passed the note to Judge Keller."
Frank P. Lawley, Jr.: There --
Felix Frankfurter: Would that contravene (Voice Overlap) --
Frank P. Lawley, Jr.: All right, sir. If I may that it -- we can't conclude that, if I may correct myself. I would say one other thing though on the -- on the question as to prejudice of this jury. They were dealing here with a case where admittedly it was a cold-blooded murder where the confessions were not repudiated, where there was no contradiction of the testimony and the -- even counsel today admits that it was first degree murder. The only question for them was the penalty -- I mean that would give them any problem was the penalty and they were persons that you will read from the appendix, persons of maturity, persons from diversified walks of life who we feel entered -- entered the jury box with open minds and who gave a verdict on the evidence.
Speaker: What is your (Inaudible)
Frank P. Lawley, Jr.: The Supreme Court, 367 Pennsylvania at 1 -- page 134 stated that there was nothing, nothing to indicate that any statements or actions on the part of Judge Boyer were prejudicial to Darcy receiving a fair trial.
Hugo L. Black: Did you have any -- was there any efforts made to find out what had been the custom in Pennsylvania. I am asking you because I think does in some parts (Inaudible), nothing strange about a judge going into another courtroom, staying there (Inaudible) and sometimes one judge ask another to help him.
Frank P. Lawley, Jr.: The -- I -- the only way I can answer this --
Hugo L. Black: Is there anything in the record that shows what is the practice in Pennsylvania?
Frank P. Lawley, Jr.: No, sir. There is nothing in the record other than -- I think, it was stated it was a practice -- common practice for -- in that county at that time for him to be in the bench at the opening of trial for the miscellaneous business. Other than that, there is nothing in the record to indicate it one way or the other.
Hugo L. Black: Were there any rules of any kind under which one judge can ask another to come in and sit with him on an important case in connection with the trial?
Frank P. Lawley, Jr.: No, sir. There is no -- no procedure set up whereby it can be done.
Hugo L. Black: Nothing in any other cases that indicates one way or the other?
Frank P. Lawley, Jr.: The only cases indicating are those where there is a lay judge involved. We've -- we've cited that in our brief. It's -- it's on page 58 of our brief. Common -- the required in the remaining judicial districts wherein there are judges both learned the law and lay or associate judges. Myra and Murray versus the Commonwealth, it's an old case and it's still done today as evidence by the article in the Bar Association written by one of the few remaining judges who is from the small county not comprising a separate judicial district.
Hugo L. Black: Now, what does this extra judge do when he sits under (Voice Overlap) --
Frank P. Lawley, Jr.: He advises us to sentence in the -- other than the capital case. He advises us to sentence. He -- that the theory apparently is this, sir. That he is from the county. He knows the people, whereas the judge coming in from another county may not know the people as well. It's a carry over from fact in, in England where Blackstone says two judges were required to carry on a court of oyer and terminer.
Tom C. Clark: Did you say that this (Inaudible) practice but not of -- it's not customary in Bucks?
Frank P. Lawley, Jr.: In Bucks County, they are under our act of assembly which states that one judge shall be -- be sufficient to hold it. There is no prohibition as to more than one judge, it just says that he only need one. It was a departure from the prior law where we did require two. Now, it says we only need one.
Tom C. Clark: Some counties you have to have two.
Frank P. Lawley, Jr.: Some judges we have -- some counties we have --
Tom C. Clark: Not to the Bucks County.
Frank P. Lawley, Jr.: Yes, sir but not Bucks County.
Hugo L. Black: Do you know what is the basis of this statement that you quote from corpus juris in connection with the practice of more judges than one to sit and cooperate entirely. You know how widespread that is in the country?
Frank P. Lawley, Jr.: No, sir, I don't. I do not, sir. I know that -- in researching, we found this, we did not -- we don't know how widespread it is in this other states. I notice this morning though from -- apparently it is done throughout in -- in various states to the greater less extent.
Felix Frankfurter: I take it -- do you think that Pennsylvania can't require (Inaudible) two judges sit in a case with the responsibility of a judge. I don't suppose anybody would question -- that is the -- that is the problem of this case.
Frank P. Lawley, Jr.: Yes, sir.
Felix Frankfurter: The problem in this case is whether the comment of Judge Boyer in view of his relation to the -- this crime and enforcement of -- of your statutes of murder in this crime, so behave himself and he didn't decide, did not assume responsibility and was in charge with this, involved including of an alien force in the content of the trial.
Frank P. Lawley, Jr.: Sir, I think that is the question and I think further the answer is that it did not because the -- the facts are that he sat one time and he sat as a spectator. There is no showing that many of these other things occurred. They -- what is done is they take the newspapers hearsay as truth. In -- in many of the showings for example, they -- they conclude that he was personally prejudice because of the statement in the sentencing of this -- of the coconspirators a week before of the verdict. What did he say? He says, "Ladies and Gentlemen, I don't see how under the evidence your verdict could have been any -- other -- any different. Under the evidence, the evidence there was the same as it is here, that it was uncontradicted. And -- and in addition, may I say that in Pennsylvania, if he had been the only judge in the county that his statement in front of the Foster-Zeitz jury would not have disqualified him from carrying on the week, the following week in the Darcy trial. In Pennsylvania, the opinion of the trial judge as to the evidence, as to the penalty, as to the guilt is proper and in some cases are court's have even said under circumstances it's his duty to give his opinion to the jury and that, one of the key cases is Commonwealth versus Simmons which is cited in our brief. Now, I think I've -- I've answered all the questions except the one of Judge Harlan. I don't know whether I've answer it in the -- in the conduct from my argument thus far. Have I, sir?
Speaker: (Inaudible)
Frank P. Lawley, Jr.: Thank you. I would say then under -- under the entire record in this case, that first, the district -- the state courts in a habeas corpus proceeding found that this man have received a fair trial. This Court denied certiorari. Then it went back to the District Court, a hearing was held and again they said it was a fair trial. The Court of Appeals affirmed the decision and I might say that in the dissent of Judge Kalodner, there are many things that there is nothing in the record, the staring at the jury. There is nothing in the record that would indicate that. Finally, I would say that this case has been longtime between the -- the crime and the present time and that the passage of time itself may indicate in your minds that possibly there's something wrong. We ask you that that not be a consideration that in a protracted proceeding such as this. There is a tendency to forget the facts of the crime itself and we refer you again to page -- beginning on page 6 of our brief to show the facts of the crime itself.
Earl Warren: Mr. Margiotti.
Charles J. Margiotti: Yes, Your Honor. Your Honor, please may I first set address to time that Judge Boyer died. He died August the 9th, 1951 which was sometime after we filed our petition for a writ of habeas corpus which petition set forth the charges that are involved in this present proceeding against his conduct. At that time he was ill but not too ill that he couldn't have testified but there's no effort made by the common law to take his deposition and in that last illness, of course, he died and during that time petition was filed and the Commonwealth filed an answer to our petition. And there was a decision by the lower court in a reversal in that meantime. Now, as to the Supreme Court of Pennsylvania, Your Honor, and Mr. Justice Frankfurter, the Supreme Court merely acted on our petition. What we did, we filed a petition in the Supreme Court of Pennsylvania, setting forth substantially the same facts that are set forth in the petition here involved for the purposes of exhausting our state remedies. And the Commonwealth filed an answer, I believe, I'm not too sure about that part be that as it may, on that petition in answer to Supreme Court, refuse the hearing and never heard the facts. And then of course --
Felix Frankfurter: I suggest, perhaps, I should (Inaudible) I suggest with a little time you have, it would be useful in respect dealing with actual stay of the record as to the finding what in your view on the uncontroverted fact about Judge Boyer's part of decision.
Charles J. Margiotti: I believe that's -- I believe that that is the most important --
Felix Frankfurter: Well, then --
Charles J. Margiotti: -- point in this case and I'm just coming to that but I want to clear up some of this early points. I want to clear up too about these questions about abduct -- a two men court in Pennsylvania. There is no such thing. I applied cases in over half the counties in the State of Pennsylvania. Both to say private practitioner as Attorney General and I've never heard of the practice of -- of a two-judge court or a three-judge court in the trial of cases, never, never occurred and I've tried many, many homicide cases both for the Commonwealth and for the defense, numerous cases and that has never occurred in my entire experience. It's the most unusual thing. This two-man court is a -- is locked at in Pennsylvania. It occurs in only two or three Districts where we have small counties and two judges sit with the presiding judge, not one but two and they're lay judges, farmers, businessman, ditch diggers, anything so long as they can get votes and they're called a judge and we all took fun at them. We called them judge and they liked to be called a judge and they enjoy that and all they do is sign papers and writs when the -- when the presiding judge is not in the county but in his own county. He has to come from another county and to those small counties and they're only two or three districts where that occurred and they don't advise the trial judge on questions of law and before in the to trial. They're consulted on the question of silence and that's as Mr. Lawley had said. Now, the chair referred to where Judge Boyer sat has been called a chair for the tipstaff. That is not correct. The evidence is all to the effect that that chair as well as all chairs within the railing like it is in here are set aside with members of the bar, not for a tipstaff. And the tipstaff, the person in charge of the jury sat on the upper -- other side. And so far as Judge Boyer is concerned, that is the crux of this case. My opinion that that is the most important thing than my opinion is conduct, shocks the conscience of the ordinary individual. I've never heard of such conduct. You can search your own minds. You're all experienced men in trial of cases and hearing cases that you ever heard of such conduct of a judge, particularly a judge could express himself who had been held as a judge in favor of the death penalty for these boys and that had appeared in the newspapers. There isn't only one newspaper as Mr. Justice Frankfurter said in those times, but that newspaper carried -- was a correspondent for the Bristol newspaper which is the other large town in the county and was published over there and it was carried over and ready. All these facts, with that expression and that feeling when they granted the severance and when they objected to the granting of severance on some penny-pinching justice idea that they would like to try these cases all together. It's going to cost money and they made statements like that from the bench and then half of the trial of the case as judge made these statements and there's no and it was respected and it was in the Court and the acts of manner which he did. There is no question of what this conduct was shown. Now, what did he do? He went on the bench. They say, they started out and they put up a trial balloon by taking the position that's necessary for Judge Boyer to go on the bench every morning. Every morning in order that they would dispose of miscellaneous business, then he would withdraw and go to some other courtroom and wouldn't appear again. Well, that balloon soon was punctured and naturally punctured because it didn't stand under the facts. He came back and he participated in the trial and what punctured it was the record. And that was the first thing I had as to his conduct when I read the record and I saw he sat on the bench and he participated in a ruling unfavorable to the defendant. And that -- that was a very, very important ruling because it involved the question of whether or not testimony of previous misconduct on the part of this defendant should be admitted as evidence. Achey take the position, should not -- the State taken the position, yes, it should because that kind of evidence will help the jury in passing on the penalty. And they take with the --
Felix Frankfurter: The record show that Judge Boyer advised that he be admitted?
Charles J. Margiotti: Judge Boyer advised that he'd be admitted and Judge Boyer --
Felix Frankfurter: -- (Voice Overlap) the testimony.
Charles J. Margiotti: What's that Your Honor?
Felix Frankfurter: You think that's publicly?
Charles J. Margiotti: Your Honor its public so far as acts are concerned but --
Felix Frankfurter: I understand he's not a judge in the case.
Charles J. Margiotti: What's that?
Felix Frankfurter: How can a man -- not judge of a -- you consider that judge would (Inaudible) that ruling?
Charles J. Margiotti: He was sitting right -- just like --
Felix Frankfurter: Is that on (Voice Overlap) --
Charles J. Margiotti: -- his Honor, Justice Reed and the Chief Justice is sitting out.
Felix Frankfurter: Now, is the ruling formally was made by Judge Keller?
Charles J. Margiotti: Yes.
Felix Frankfurter: He made the ruling?
Charles J. Margiotti: Yes. I'd say yes.
Felix Frankfurter: It would appear that Judge Boyer advised him to make the ruling?
Charles J. Margiotti: It appears right in the record.
Felix Frankfurter: What?
Charles J. Margiotti: Judge -- let -- let me have it, would you --
Felix Frankfurter: What -- what appears that he talked, that he wished adjourned or that he had said the rule this way, which?
Charles J. Margiotti: Your Honor please, it had to be a whispered conversation because in Pennsylvania that's what we call a "sidebar" and that --
Felix Frankfurter: That's -- that was taken down by the stenographer.
Charles J. Margiotti: Taken down by the stenographer sits alongside of the judges. They take them down.
Felix Frankfurter: -- can you give us the page on which I can read it?
Charles J. Margiotti: Yes, sir. On page 1143, 1144 (a). No, wait a minute.
Felix Frankfurter: 1144?
Charles J. Margiotti: Yes, sir. On -- on page 1144 (a) starts and you find it on 1145. The whole -- everything what was said by all the parties and that was taken down stenographically and thank God for that because if it hadn't been taken down stenographically most people would have said I don't recall.
Felix Frankfurter: Now, where does it appear in the record that as the result of this objection he thereafter abstained from participation?
Charles J. Margiotti: It doesn't appear on the record.
Felix Frankfurter: How do we know it?
Charles J. Margiotti: You'd know it from the -- from -- we don't know it. So far as -- as so far as Judge (Inaudible) concerned, he testified that he, thereafter, left the bench but he doesn't say how soon thereafter he left the bench. Judge Keller who was a trial judge was brought into court all the way from Philadelphia to (Inaudible) from the southern part of the State to the northern part of the State and it was in that courtroom as a witness, and I thought they're going to call him as a witness. They refuse to call him as a witness but they presented a certificate in which he stated what he knew about the situation and they introduced a certificate. I objected to it on the ground that the best evidence was a judge himself since he was in court. They refused to call him. The Court took the certificate. Judge -- Judge Keller left, went back to Doylestown. I was thinking of calling him and I was going to take some risk in doing that but being a judge I was going to call him anyhow but he -- when I went to call him, he was gone. And so far as his certificate is concerned, you'll find it on page -- pardon me for taking up a little time, Your Honor. My -- I have a bad eye. I have a kind of an operation, I can't help -- where is it? The certificate is found on page 1133 (a) and was reference to this transaction in paragraph -- in page 1138 (a). He says, on several occasions, he says, during the Darcy trial, the Honorable Kelvin S. Boyer, the additional law judge occasionally joined the undersigned and sat with them at the beginning of several sessions of Court, devoted to the trial of a case for the purpose of transacting miscellaneous business. After which, he withdrew when the case was in progress. On several occasions, however, Judge Boyer remained for brief periods while evidence was presented and that's the judge himself who sat on the bench and did the ruling. Remaining for brief periods on cross-examination, I could have had developed what those brief periods were whether they were 10 minutes or a half hour, what he meant by brief periods and how many they were, but they didn't have them for cross-examination. On one of these occasions and then he went on, it goes on tells what occurred with reference to that particular ruling that was made. And --
Felix Frankfurter: Could you tell us, Mr. Margiotti, the basis for statement in Judge Hastie's opinion that is quoted in Judge Kalodner's starting opinion. He attended -- even attended an evening session --
Charles J. Margiotti: Yes, there was --
Felix Frankfurter: -- the basis of (Voice Overlap) --
Charles J. Margiotti: There -- there was -- I know there was evidence of that kind unless my associate could pointed out for me, Your Honor. I can't just quickly do it for you but I'll do the best I can but while -- while I'm going to something else that will be done. But I know that that occur because it was definite evidence on that particular subject because (Voice Overlap) --
Earl Warren: You're time (Voice Overlap). I think your time has expired, Mr. Margiotti. If -- if you want to send us a little memo on that as to -- to where the evidence is, we will be -- we'll be happy to --
Charles J. Margiotti: I'll do that, Your Honor.
Earl Warren: All right.
Charles J. Margiotti: Thank you very much. My time is a little too fast --


Earl Warren: The next case is Number 42, Gibson v.Lockheed Aircraft Service, Inc. Mr. Spillers.
G. C. Spillers, Jr.: Yes, sir. May the Court please. This matter before the Court is on petition for certiorari to the Fifth Circuit. The action as it originally rose was a tort action. The plaintiff, Victor D.Gibson was a civilian pilot. The defendant, Lockheed Aircraft Service Incorporated was engaged in aircraft repair business among other businesses. It was the contention of the plaintiff that he, as a civilian ferry pilot, while flying a B-29 bomber, which has been repaired by the defendant corporation, was injured in a crash of the plane which resulted from the negligent repair of that plane and the reconditioning of it per flight by the respondent. The jury returned the verdict in favor of the petitioner for $70,000 damages. As a requisite for overruling motion for a new trial, the trial court required a remitted due of $20,000, which was complied with by the petitioner. The principal or chief point as we conceive it in this appeal is a construction of Rule 51 of the Rules of Civil Procedure. The facts briefly out of which this action rules are these, since World War II, since about 1945, the B-29 bomber in question, together with other bombers have been into open air storage that pilot army are based in Texas. In 1951, when this injury occurred to by the plaintiff, the Federal Government had determined to take those planes out of storage and recommission. It employed the respondent in this case to repair and recondition them for a flight from Texas to Marietta, Georgia which was a major repair and reconditioning base. The plaintiff, as a civilian pilot, was employed to ferry fly this plane to Marietta, Georgia. There was no contractual relationship, however, between the petitioner and the respondent, nor that the relationship of master and servant exist between them. The respondent had repaired the plane, presented it to the petitioner, and his crew assured them that the plane was in airworthy condition. The petitioner then took off from the base and flew approximately an hour and half and to a point about 20 minutes east of Fort Worth by a flying time when it was suddenly discovered that in the rear bomb bay, the bomb bay is being in tandem, there were heavy gas fumes indicating a gas leak in the plane. The plaintiff or petitioner immediately undertook all emergency measures in order to minimize the damage, the danger of explosion or the plane catching on fire. He opened the bomb bays to ventilate the plane, cut off all electrical circuits in the plane which might cause a spark and an explosion, except those which were absolutely essential to the operation of the motors and determine to make an emergency landing at Carswell Air Base. As a matter of fact, he was directed by the army to land it. In coming in for a landing as he approached the landing strip, his controls failed. His evidence showed that the plane caught on fire as it came over to Lake Worth just immediately prior to the runway. As a result, when he pulled back on the controls, the controls didn't respond due to some damage caused by this fire. And as a result, the plane hit an embankment on the far edge of Lake Worth, jumped about 40 feet or skidded onto the runway and proceeded down the runway about 1800 yards where it came to a stop on -- in flames. The plaintiff, the petitioner in indiffereing to escape from this burning plane, fell on the runway. On his back, broke his back, severely damage his shoulder and gave him other serious and permanent damages with the result that he is a man approximately 48 or 46 years old at the time of his injury. He's rendered unemployable in his previous profession as a pilot, which he had followed all his life. He had about 8000 hours of flying time of which 2000 hours were in B-29 bombers. Now, to close of the evidence, the respondent did not move for a directed verdict. The Court instructed the jury and at the close of the Court's instructions, after the jury had retired, and the respondent had requested 22-request instructions of the trial court, the trial court gave three and denied the balance or 19-request instructions. After the jury retired, the Court asked the respondent if it had any exceptions, and at that time, counsel for the respondent said only this, “I have no exceptions, except those which are covered by my requested instructions, which were refused." That's the only objection made for the failure of the trial court to give 19 requested instructions. Now, it is the position of the petitioner in this case that this objection was utterly insufficient under Rule 51 of the Rules of Civil Procedure, which provides in part, the part with which we're here concerned as follows. No party may assign as error, the giving or the failure to give an instruction, unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. In this case, petitioner contends that the respondent's objection, utterly fail, first of all, to point out to the Court what he was objecting about specifically as required by this Rule. Secondly, they utterly fail to distinctly state to the trial judge the grounds of his objection and why he felt it was error for the trial court to refuse his 19 requested instructions. And finally, of course, the objection was made after the jury retires in contrary to this Rule. Now, the issues in this case as we see it in addition to a construction of Rule 51, I might first pay what the Circuit Court did on appeal by the respondent from this $50,000 judgment. It urged first in the Court on appeal that the evidence was insufficient to sustain the verdict. The court below correctly held, however, that in the absence of a motion for a directed verdict, it had no power or obligation to check the record and find out whether this was so or not, but it would not consider such an assignment of their own appeal. The Court on appeal, however, did hold that 15 of the requested instructions, which had been refused by the trial court, were properly refused by the trial court. But it concluded that four of the requested instructions should have been given by the trial court and accordingly reversed the case.
Sherman Minton: Well, this was a joint request, a general request and not a civil request for instruction.
G. C. Spillers, Jr.: Yes, sir – no. Pardon me. If Your Honor pleas, there were 19 separate instructions or 19 --
Sherman Minton: I understand that, but his -- his request was a general request for some of the instructions were good and some were bad as whoever overruled the request.
G. C. Spillers, Jr.: That I think is the general rule and that would be our position in regard to that, Your Honor. The court below, however, did remand the cause for a new trial, setting aside the judgment. Now, its petitioner's position in this case, first of all, that the Court evaded the application of Rule 51 and its plain terms by even considering the requested instructions, because the objection made by the respondent was utterly insufficient to preserve that error on appeal.
Speaker: Do you say there is definitely an actual formal objection or anything suffice short of it in the form of objection (Voice Overlap) --
G. C. Spillers, Jr.: Our position is that primarily, as we conceive the law. Rule 51 is a rule of substance that doesn't require -- is not just a mere technicality to perfect the record on appeal. It is a rule designed to advise the trial judge at the last possible moment of any error, which he has committed immediately prior to the time the jury retires. And that anything less than that does not fulfill that purpose of the Rule and it's insufficient.
Speaker: Isn't that to say, “I object?”
G. C. Spillers, Jr.: My opinion of that would be this. That the mere “I object,” is merely a technical type of objection such as it's formally used as a magic word to preserve a record on appeal. The modern tendency here is to get to the substance of an objection and to tell the Court really what you are objecting about and why. Now, secondly, it's the position of the petitioner in this case that as a matter of fact, and a matter of law, the four requested instructions upon which the court below reversed this case, were all properly refused by the trial court in the first instance. Now, I don't intend to take up the time of the Court on that particular aspect to the -- to the case other than to point out that one of the instructions was erroneous as a matter of law without any question. The other three requested instructions were properly refused because the evidence didn't justify the giving of them. There wasn't evidence to support the defenses which they propose to set up. We brief that thoroughly in our brief and gave reference to everything that we considered applicable in the record bearing on each of these instructions, the facts. The brief of the respondents suggest no new facts in regard to any of these requested instructions other than what we had already set forth in our brief in chief. So, we refer the Court to that and make the flat statement that all of those who were requested instructions were properly refused in the first instance by the trial court. The third question that arises here in this appeal is one which has given me some little consideration and it's this. In a few of the cases, the Courts have noted that there has been an incomplete or imperfect compliance with Rule 51 by the objecting party, but they reserve to themselves the right on their own motion to review the refusal to give request instructions, even though a proper objection is not made under Rule 51. That has happened in about 14 cases but the Courts then turned around in those cases and said that such an inherent power should only be exercised in a very extra ordinary case, which they did not find before them at the moment.
Earl Warren: We'll recess now, Mr. Spillers.