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UNITED STATES EX REL. DE VITA v. MCCORKLE

July 14, 1955

UNITED STATES of America ex rel. Silvio DE VITA, Applicant,
v.
Lloyd W. McCORKLE, Principal Keeper of the New Jersey State Prison at Trenton, New Jersey, Respondent



The opinion of the court was delivered by: MODARELLI

This is an application by Silvio De Vita for a writ of habeas corpus. *fn1" The determinations in this case also apply to Joseph Grillo. Both men, who are in custody in the New Jersey State Prison, were convicted in a New Jersey state court of murder in the first degree arising out of an armed robbery. Since the jury did not recommend life imprisonment, under the state law *fn2" the convictions resulted in mandatory death sentences. The third participant in the crime, Ralph Rosania, was also convicted of murder in the first degree but the jury recommended and he received a sentence of life imprisonment. Hence, he did not take an appeal.

On November 9, 1951, Joseph Law, a uniformed special police officer, was shot and killed during a robbery while escorting Thomas Lofrano, a supermarket manager from his store to a bank with the day's receipts. As Law was about to start his car, with Lofrano seated next to him, the door on the other side of the car was opened and De Vita, who was standing close to the side of the car, pointed a gun across Lofrano's stomach. De Vita simultaneously announced, 'It's a stickup.' Grillo, also armed, opened the door on Law's side. Law raised his hands in response to De Vita's announcement, then there was a shot, Law slumped over the wheel and Grillo reached into the car and took the bag containing the day's receipts. Grillo fired the shot that resulted in Law's death. De Vita and Grillo escaped but were subsequently apprehended.

 The chronology of proceedings and legal maneuvers concerning the applicant's commitment prior to this application are:

 1. February 25, 1952, the trial of the three alleged participants in the crime was commenced.

 2. March 8, 1952, all three were found guilty.

 4. June 8, 1953, certiorari was denied by the Supreme Court of the United States. *fn4"

 5. July 1, 1953, a New Jersey state court issued a writ of habeas corpus, returnable on July 8, 1953, when a hearing was held.

 6. July 14, 1953, the court discharged the writ. *fn5"

 7. October 19, 1953, that judgment was affirmed by the Supreme Court of New Jersey. *fn6"

 8. January 4, 1954, certiorari was denied. *fn7"

 9. March 25, 1954, in a New Jersey state court, Grillo moved for a new trial and oral argument was heard. At this point, the precise questions now raised on this application became involved in the case. The motion was denied.

 10. April 15, 1954, De Vita made and the court denied a companion motion for a new trial.

 11. June 28, 1954, the Supreme Court of New Jersey affirmed the decisions denying the motions for new trials. *fn8"

 The execution of De Vita and Grillo was set for the week of August 15, 1954. New Attorneys having been retained by De Vita, on August 13, 1954, they made three unsuccessful separate applications to Justices Black, Jackson, and Clark for a stay of execution pending application for certiorari. *fn9"

 On August 16, 1954, on the eve of the execution, as is customary in cases of this character, the present application for writ of habeas corpus was made. '* * * Under the circumstances the coming into the federal court was entirely proper.' *fn10" On the same day, this court rendered an oral opinion and refused to grant the writ or to issue an order directing the respondent to show cause why the writ should not be granted. *fn11" In order to allow an appeal, this court issued a certificate of probable cause *fn12" and a stay of execution until August 19, 1954. *fn13"

 On November 19, 1954, the Court of Appeals reversed this court's decision -- not on the merits of the application, as will hereinafter appear -- and remanded the case for further proceedings not inconsistent with its opinion. *fn14"

 Following the receipt on December 20, 1954, of the mandate of the Court of Appeals, this court on January 10, 1955 and April 25, 1955, heard oral arguments by counsel and received into evidence the documentary evidence relied upon by the applicant. *fn15" As will be discussed, a more extensive hearing is unnecessary. *fn16"

 The 'Record'


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