Before McLAUGHLIN and GANEY, Circuit Judges, and COHEN, Dirstrictjudge.
McLAUGHLIN, Circuit Judge.
In this appeal from denial of a petition for habeas corpus by a state prisoner the only question calling for any extended discussion is whether his confession was voluntary.
Appellant categorically states in his brief that his claims regarding the involuntary nature of his statement "* * * are not based upon the use of physical police brutality * * *." He was specifically asked on the witness stand regarding the period during which he gave his statement, "And you weren't mistreated at all during the day, were you?" He answered, "No, sir."
He was found guilty of murder in the first degree in the New Jersey state court. The crime was the wanton killing of a fifteen year old girl whom he knew. She was the daughter of a family living in the area where he had his home. Appellant was twenty-three years old at the time of the offense. He was married, living with his wife and their baby. He had served in the Armed Forces. He had been employed with Rayco Company. There has never been any pretention that appellant was a child as in Gallegos v. Colorado, 370 U.S. 49, 82 S. Ct. 1209, 8 L. Ed. 2d 325 (1962), rehearing denied, 370 U.S. 965, 82 S. Ct. 1579, 8 L. Ed. 2d 835 (1962), or an adolescent as in Haley v. Ohio, 332 U.S. 596, 68 S. Ct. 302, 92 L. Ed. 224 (1948), or an adult with the mental age of a child as in Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961). Actually, within two hours of Smith starting to tell his version of the occurrence he had been thoroughly examined by Dr. Gilady, the medical examiner for Bergen County (whose qualifications were admitted), who found him in normal health, alert, with pulse and respiration normal. These findings and their accuracy have never been disputed. Nor can the situation before us be argued as paralleling that in Malinski v. New York, 324 U.S. 401, 65 S. Ct. 781, 89 L. Ed. 1029 (1945) which turned on the avowed purpose of the police there concerned to extract a confession.
This appeal is zealously pursued. The theory of it is that a combination of secret inquisitorial process and psychological compulsion resulted in an involuntary confession. In connection with this, prompt arraignment, the right to be silent and the right to consult counsel, states appellant's brief, "all are closely connected to the period of interrogation to which a defendant legitimately may be subjected." It is rightly conceded that the rule of Mallory v. United States, 354 U.S. 449, 77 S. Ct. 1356, 1 L. Ed. 2d 1479 (1957); McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819 (1943), is applicable only to the federal courts. But states appellant this "* * * does not mean that the states are given the right to hold a suspect interminably or beyond a certain point." It is admitted that in Culombe v. Connecticut, supra 367 U.S. at 579-580, 81 S. Ct. at 1866, the sole decision on which appellant relies,*fn1 clearly sets out the governing law where it states:
"But if it is once admitted that questioning of suspects is permissible, whatever reasonable means are needed to make the questioning effective must also be conceded to the police. Often prolongation of the interrogation period will be essential, so that a suspect's story can be checked and, if it proves untrue, he can be confronted with a lie; if true, released without charge."
With this rule in mind let us see of just what Smith's interrogation consisted, with particular attention as to whether it was coercive.
The girl was found brutally murdered around 9:20 A.M., March 5, 1957, in a deserted area known as "the sandpit" in the Township of Mahwah, Bergen County, New Jersey. That night at 11:30 the police took Smith into custody. The action of the police was based upon information supplied them by Joseph Gilroy, a friend of Smith's who had loaned his automobile to Smith the night before and had become suspicious of stains he found in it after receiving it back. On the night of the 5th, Smith went to bed at 7:00 P.M. At 7:30 his wife wanted to go to her mother's in Ridgewood. They went there. He went to bed at 9:30 and fell asleep almost right away. Smith was awakened by the officers and went with them to Mahwah police headquarters. The Prosecutor, Assistant Prosecutor Galda, Chief Smith of Mahwah, Captain DeMarco and numerous newspaper reporters were present. Mr. Galda did most of the questioning. Smith's left hand was lacerated. He said he had hurt it while repairing a tail pipe. He had a contusion on his left knee and a recent laceration on the right. Pictures were taken of those conditions. Smith explained he had become ill and fallen out of the car on his knees. He said he had become sick to his stomach and had vomited over his pants and shoes. He stated that he had thrown away the shoes and pants he had worn and that he would show them where. He went with Mr. Galda and three of the police to a place in Ramsey where he had discarded his shoes. The stained shoes were obtained. The stains were later identified as blood. They drove to the sandpit next. Smith pointed to where he said he had been sick to his stomach. The police could not find any evidence of this. They went on to where Smith claimed he had left his pants but these could not be found. This was about 3:00 A.M. They returned to Mahwah. About 3:30 A.M. a detective picked up Smith's jacket which he had said he had worn the night before. There was some more questioning, particularly as to the clothes Smith had worn on the night of the 4th. For a time, while the police were talking between themselves, Smith sat in the back of the room with Gilroy and another person who was being questioned. Smith, after that, told the police that he had knelt on the shoes while his knees were bleeding, this in explanation of any blood that might be on the shoes. Coffee and buns were brought in for everyone, including Smith. Somewhere between 3:00 A.M. and 3:45 A.M. Smith went with the police to search for the places where he said he had been sick and where he had thrown his pants. Large hand floodlights were used and the whole area checked without success. The group returned to headquarters quite late. About 5:00 A.M. arrangements were made to have Smith examined with particular reference to his knees by Dr. Gilady. The examination was fixed for 7:30-8:00 A.M. On the way to the doctor's, a detective and Smith stopped at a lunch room and had breakfast. After that they picked up DeMarco and went to the doctor's office. The doctor found Smith to be in normal health. He was alert. His pulse and respiration were normal.
Following the examination, the party went to the Prosecutor's office where colored pictures were taken of Smith's knees and left hand. Around this time the Prosecutor's office was notified that the pants, stained with blood and with a pair of socks in a pocket, had been found. Smith's finger nails were scraped and cut and a pinch of hair was taken from his left temple. He testified that he volunteered to take the latter out himself. He told the two detectives who were questioning him that the girl had hit him in the face. He started crying. He asked for some water and a cigarette which were given him. He asked to speak to a certain priest whom he knew and who was called. Shortly after that when Smith was more composed he told the detectives of meeting with the girl. The priest arrived forty-five minutes to an hour later and he and Smith were together about a half hour. After that, at 12:50 P.M., Smith agreed to make a voluntary statement. This was by questions and answers and Smith gave it under oath. It was taken stenographically, partly in the Prosecutor's office and later in the crime area. It is lengthy, covering 39 pages of the appendix. The statement was concluded at 3:45 P.M. and Smith was taken to Mahwah for arraignment, arriving there at 4:05 P.M. He was arraigned about seven o'clock that evening.
Smith's statement was given to a court reporter of whom the defense attorney said during the trial with reference to the statement, "* * * I am sure it is an accurate transcript because I know the stenographic reporter and I know his skills." The reporter was a trial witness. He said he took down everything that was said by Smith and those questioning him; that there were no threats or violence; that Smith did not complain at all. Throughout the taking of the statement a member of the general jury panel serving at that time, was present as a disinterested witness. He is an employee of the Curtiss-Wright Corporation. He observed Smith and his condition. He said "he seemed all right to me in every way" and that there were no complaints from Smith as to the manner in which he was being treated. Two township police chiefs, Captain DeMarco and Detective Spahr gave clear evidence pointing to the unhesitating willingness with which Smith answered the questions. These witnesses were not cross-examined at all with respect to the voluntariness of the confession. The defense attorney, a most experienced, highly capable trial lawyer, conceded that the statement had been given voluntarily but was later rightly allowed to present evidence on the question of its voluntariness. Nowhere in the transcript of this two weeks' trial is there the slightest mention, reference or claim of coercion upon Smith in connection with his statement or otherwise.
Smith had said in his statement that after he swung hard, he didn't remember anything. In his testimony at the trial he said he had lied about that and other matters in his statement. The Prosecutor asked him: "Now the story that you told in the statement in the Prosecutor's office, S-84 in evidence, you told the same story to three other persons, is that right, three doctors, Dr. Spradley, Dr. Zigarelli and Dr. Collins?" Smith answered: "I don't know if I told them the exact story or not." Then he was asked: "But you told them substantially what you said to the Prosecutor's office?" Smith replied: "Substantially I did." It was immediately thereafter that he stated, "I was never handcuffed, no sir." And being asked: "And you weren't mistreated at all during the day, were you?", answered: "No, sir."
The total lapse of time Smith was in custody prior to his confession was thirteen hours and twenty minutes. Complaint is now made of this first, because of Smith's lack of sleep during the period. The night of the murder, he was in bed by 10:00 P.M. He listened to four rounds of the Gil Turner-Ruby Given prize fight. He said, "I laid in bed listening to Gil Turner knock him out in the fourth round and went to sleep." A round is of three minutes duration with one minute rest intervals. Three rounds and part of a fourth would not total fifteen minutes. The fight would take a few minutes to get under way. Reasonably it was over before 10:30 P.M. He got out of bed the next morning "* * * about 8:30." So he had apparently an excellent night's rest. The next evening he was in bed by seven o'clock. He rose a half hour later and took his wife and baby to his mother-in-law's. He went to bed there and was in bed for two hours before the police woke him at 11:30 P.M. From that time through his arraignment there is nothing to indicate in Smith any condition of exhaustion or fatigue.
Some mention is made of Smith not having an outside jacket on while he going with the police to the various places connected with his story. He was out of doors altogether at most two or three hours. The longest he was out at one time was an hour. He wore a red woolen shirt. He had an undershirt on, for later he took it off and it was marked for identification. At one stage outdoors he mentioned it was quite cold and Mr. Galda gave him his overcoat which he wore from one-half to three-quarters of an hour. The next morning, before he was taken to breakfast and to the doctor's, because he was cold, he was allowed to move into the front seat of the automobile in which he rode, as he says "* * * so that he (Detective Sinatra) could turn the heater on for me * * *." There is evidence indicating that the weather the night of March 5th was only two degrees colder than that of the night of March 4th. And while there is testimony that he had worn a blue jacket on the 4th, Smith also definitely said that all he had on that night was a shirt. This occurred on his cross-examination which he was asked to describe what the man who he claimed was at the sandpit, was wearing. He stated: "Dark trousers, light-colored shirt. Whether it was cotton, flannel, or what, I don't know."
Then came these questions and answers:
"Q. Well, it was pretty cold that night? A. It was.
"Q. And all he had on was a shirt? A. That is ...