Due to this, the police felt they would have to continue questioning Smith. Even though the intermittent questioning during the 13-hour and 20-minute detention period prior to confession must have tired Smith, we have to keep in mind that reasonable police interrogation is permissible conduct. The interrogation did not sap Smith's physical and mental resistance so as to overcome his free will. When Detective DeLisle obtained an acknowledgment of the confession from Smith, he had not utilized physical force or mental machinations in order to overbear petitioner's capacity for self-determination. We must remember at this point petitioner had an attorney and had been told not to sign anything. But Smith orally acknowledged the veracity of the statement DeLisle presented to him -- the stenographer's transcript of the questions and answers constituting Smith's confession of March 6, 1957.
Petitioner alleges in the tenth category that the trial court abridged his constitutional safeguards as it failed to allow the jury to reconsider the voluntary nature of the confession after the trial judge had determined that it was voluntary. We find this argument to be without substance. At the time of the trial of petitioner Smith's case, the law of New Jersey was that the determination of voluntariness is for the court alone. State v. (Clarence) Smith, 32 N.J. 501, 546, 161 A.2d 520, 544 (1960). The United States Supreme Court has declared that the determination of the admissibility of a confession may be left to the trial judge or the jury, whatever is the local procedure. Rogers v. Richmond, 365 U.S. 534, 545, 81 S. Ct. 735, 5 L. Ed. 2d 760 (1961).
ISSUES RAISED IN PART IN THE STATE COURTS.
In the appeal from the trial court to the New Jersey Supreme Court, Categories 11 and 12 were raised in part. Because we have ruled that Edgar Smith has exhausted his available state remedies on the issues raised in the first appeal to the New Jersey Supreme Court, this court will examine the segments of points 11 and 12 that petitioner advanced before the New Jersey Supreme Court on appeal.
In the main, petitioner failed to present to the New Jersey courts the thrust of his eleventh point, namely, that the trial court failed to charge lawfully and properly on the petitioner's defenses. However, the New Jersey Supreme Court did consider a portion of this argument.
Edgar Smith claimed in his first appeal to the New Jersey Supreme Court that the trial court's charge was erroneous in that the charge removed from the consideration of the jury the question of reasonable doubt. Smith argued that reasonable doubt of his guilt would arise from consideration of evidence reflecting his claim of non-presence at the place and time of decedent's death. The New Jersey Supreme Court held otherwise, -- ruling that the breadth of the charge allowed the jury to consider all the factors affecting the question of reasonable doubt. State v. Smith, 27 N.J. 433, 454-455, 142 A.2d 890, 902-903 (1958). The relator's petition lacks clarity as to the specific intrusion of his constitutional guarantees engendered by the alleged improper charge. However, it is immaterial, as we are in agreement with the New Jersey Supreme Court's disposition of this point.
We shall be unable to consider any other constitutional arguments put forth under petitioner's eleventh point. This is due to petitioner's failure to bring to the attention of the New Jersey courts any other arguments under this point. We must preclude ourselves from considering arguments on this point as there has not yet been such an exhaustion of state remedies as the policy of Section 2254 of Title 28 dictates.
The background of petitioner's twelfth point -- the charge of the trial court was erroneous in that the judge failed to charge all degrees of homicide including manslaughter -- resembles petitioner's eleventh point. As with the eleventh point, the petitions did not fully argue his entire twelfth point before the New Jersey courts, but just maintained in his first appeal that the judge's charge distinguishing between first and second degree murder was harmfully defective. The New Jersey Supreme Court held that the trial court correctly charged the distinction between first and second degree murder. State v. Smith, 27 N.J. 433, 453-454, 142 A.2d 890, 901-902 (1958). Examination of the record shows that the New Jersey appellate courts have never considered whether the judge should have charged the jury on manslaughter.
It is difficult to glean from the relator's brief exactly how an allegedly incorrect charge on homicide in the instant case has infringed his constitutional safeguards. However, we agree with the New Jersey Supreme Court that the trial court's explanation of the difference between elements necessary to constitute second degree murder and first degree murder was correct. State v. Smith, 27 N.J. 433, 142 A.2d 890 (1958). Therefore, there was no impairment of petitioner's constitutional right to a fair trial.
We shall be unable to consider any alleged constitutional violations that the trial court committed in its failure to charge the jury on manslaughter. This is due to petitioner's failure to bring this issue to the attention of the New Jersey courts.
We have examined relator Smith's petition for habeas corpus with due care. He offers many points as alleged argument for granting the Great Writ. We have discussed those we feel merit discussion, and it is our conclusion that there is no basis for allowing affirmative relief.
An Order may be presented in conformity with the views hereinabove expressed.