Schnackenberg, Kiley and Fairchild, Circuit Judges. Fairchild, Circuit Judge (concurring). Kiley, Circuit Judge (dissenting).
SCHNACKENBERG, Circuit Judge.
William Perkins and Allen Golson, petitioners, appeal from an order of the United States District Court for the Northern District of Illinois, Eastern Division, denying their applications for writs of habeas corpus directed to Frank Pate, Warden of the Illinois State Penitentiary.
Following a trial by jury in the Circuit Court of Cook County, Illinois, on an indictment charging petitioners with the murders of United States postoffice inspectors John McAuliffe and Benedetto Spizzirri, Perkins was sentenced to imprisonment for life and Golson to a term of 50 years.*fn1 The convictions of the present petitioners raised identical issues upon the same facts and were consolidated for adjudication.
The convictions of Perkins and Golson for the murder of McAuliffe were affirmed by the Illinois Supreme Court but the convictions for the murder of Spizzirri were reversed, People v. Golson, 32 Ill.2d 398, 207 N.E.2d 68 (1965), because defendants had already been tried for identical misconduct in the McAuliffe prosecution.
There was no evidentiary hearing in the habeas corpus case in the district court and the record is in the same form now as when presented to the Illinois Supreme Court and the United States Supreme Court.
The district court held that petitioners were not being held in custody in violation of the federal constitution. In rejecting that claim it held that petitioners had not been denied a fundamentally fair trial and that they had not been deprived of any rights secured to them by the federal constitution.
"About two weeks before the murders Wilson had bought a gun and shortly before the crimes Wilson, in the company of Perkins and Golson, bought a clip for the gun. On the night of the crimes the 3 men set out in a car jointly owned by Perkins and Wilson with the intention of stealing from automobiles. Wilson put the gun under the dashboard. They did not find any autos to rob and drove around looking for something else to steal. One of the men said that he had seen some boxes on a loading dock and, after circling the dock three times in the car they stopped and Wilson and Golson each took a mail sack from the dock and placed them in the car. They had only driven a short distance from the dock when two postal inspectors drove up beside them and ordered them to stop. One of the inspectors was armed with a gun. The inspectors looked in the back seat of the car and saw the mail sacks and told the three men to get out. They leaned them up against a railing and searched them, following which the three men and the two postal inspectors got into the inspectors' car and drove around the corner where they stopped. One of the inspectors asked Wilson to get out of the car and help him start Wilson's car. When Wilson got into his car he retrieved the gun from its hiding place under the dashboard and hid it on his person. He helped the inspector move the mail bags into the inspectors' car and then got in the back seat of the inspectors' car with the other two defendants. According to Perkins he then heard a click and saw that Wilson had the gun in his hand. Perkins said 'No', but Wilson started shooting. According to Golson, when he heard the gun click he said to Wilson, 'Please don't do this. Let him take us to jail.' In the statement Wilson said that he raised the gun and pulled the slide back so as to cock it and pointed the gun at the inspectors and told them to be still. One of the inspectors eased his hand out of his pocket and the other inspector turned around and hit at Wilson's gun and Wilson started shooting."
At 408, the Illinois Supreme Court, at 74 of 207 N.E.2d, said:
"* * * In the present case the evidence showed that all three men had participated in the purchase of a clip for Wilson's gun and that they all knew that Wilson had secreted the gun in the car before they embarked on their illicit scheme. The postal inspectors were shot a short distance from the scene of the theft while the conspirators were attempting to escape from that scene. There is sufficient evidence from which the jury could infer that the conspirators intended to forcibly resist any attempt to arrest them, either during the course of the crime or in an attempt to escape from the scene. Such a plan comes within the doctrine of felony murder, since it was contemplated that violence might be necessary to enable the conspirators to carry out their common purpose."
The district court found that petitioners had exhausted available state remedies and that therefore it had jurisdiction over the case. It upheld the ...