Before BIGGS, Chief Judge, and McLAUGHLIN, KALODNER, STALEY, HASTIE, GANEY and SMITH, Circuit Judges.
McLAUGHLIN, Circuit Judge.
Appellants were convicted of first degree murder in the Essex County, New Jersey state court and sentenced to life imprisonment. Thereafter they applied to the United States District Court for the District of New Jersey for a writ of habeas corpus.*fn1 This appeal is from the denial of that petition. It is fitting to note that it has been presented by both sides carefully and competently.
The victim was an elderly man who died from injuries which were found by the New Jersey Supreme Court to have been "* * * sustained in a 'mugging' - a term commonly used to describe the vicious act of physical attack upon an isolated pedestrian on a public street at night and the taking of money and effects from his person."*fn2 On the date of the crime defendant Smith was less than three months short of being eighteen years old. He had progressed at least to the ninth grade in school. He had married thirteen days prior to the crime and at that time was living with his wife. Stanford had become seventeen a month before. In school he had gone as far as the eleventh grade. He had been employed in a local manufacturing plant for about nine months at $44 a week.
There is strong, uncontradicted evidence that the decedent, Carmine Dellorto, was attacked by two such persons as the defendants for the purpose of robbery on a Newark, New Jersey street corner near midnight, June 13, 1958. Mr. Dellorto was knocked to the ground, his skull was fractured the pavement and he died within a few minutes thereafter. Just prior to the attack he had left a friend's house to go to his bus stop. His wallet was in his hip pocket at that time; it was missing after the assault.
There was no eye witness identification of the defendants as the persons involved. On June 23, 1958, David Parker, a resident of defendants' neighborhood told the police that the morning after Mr. Dellorto had been killed, the defendants told him that "they got themselves a cat at 15th Ave. and 10th St. last night." Smith and Stanford were brought to Police Headquarters about four o'clock that afternoon. As the New Jersey Supreme Court held, "There is no indication they were not of normal mind and will." They were questioned separately by the police. At first they denied any connection with the offense. Within from one to three hours, at the latest shortly before 7:00 P.M., Stanford admitted complicity and on being advised of what Parker had said he and Smith had told him the morning after the Dellorto death, gave the details of the crime. Around 9:00 P.M. Smith was confronted with the results of checking out his story of where he had been and who he had been with during the critical period, which established that he and Stanford had been together. Smith then orally confessed his guilt. In addition to the time spent ascertaining whether the various statements of the defendants were true, there was an interval to give all concerned the opportunity of having food. Following that, the written statements, prepared successively by the same detective, were composed and typed; efforts were made to iron out discrepancies on minor matters; the confessions were read over and finally signed about 1:30 A.M.
Smith and Stanford were then taken to the Youth House, the county facility for detention of juveniles pending hearing in the juvenile court. A complaint was filed in the latter alleging that the defendants had robbed and killed Mr. Dellorto. This was heard on July 3rd, 1958. At the hearing both defendants were represented by counsel. The complaint and the applicable rule (R.R. 6:9-7) were read. Under the rule where the juvenile is sixteen or seventeen years old and is charged with an offense of heinous nature which may require imposition of sentence or is a habitual offender he is subject to prosecution as an adult on the order of the Juvenile and Domestic Relations Court. The court stated that the defendants were charged with a heinous crime and in addition, from the records before it, were habitual offenders. As a result, under the rule and N.J.S. 2A:4-15, N.J.S.A., the court referred the case to the county prosecutor. The judge correctly ruled that the only necessary element for that action was present i.e. the formal charge of a heinous offense. Both defendants being seventeen, they were within the statutory age bracket. Later the defendants were indicted for murder.
The state Supreme Court held that when the defendants were taken into custody they were prime suspects and such action was lawful; that detention at police headquarters for a reasonable opportunity to question was proper in a situation as here presented where the suspects were close to the adult age and the crime charged most serious.*fn3 The Court further made it very clear that there is no provision in the juvenile rules calling for a preliminary hearing other than the one had and that any further hearing was never contemplated as procedurally indispensable in juvenile matters. The Court examined at length all of the preliminary steps taken and found specifically that there was no substantial violation of any of defendants' rights.*fn4
It is rightly conceded that only undisputed evidence may be considered on the question of whether the judgments in these cases should be disturbed. Consequently there can be no excuse for cluttering up the serious problem before us with a repetition of contentions on behalf of appellants that which the jury was entitled to, and did, believe. No actual disagreement exists as to this.
All of which brings us to the only real question before us - whether defendants' confessions were voluntary.
It is asserted on behalf of the appellants that the confessions were coerced. In an effort to support this it is in effect urged that a nine and one-half hour to ten hour period of persistent interrogation during which a suspect is held incommunicado might or might not prove to be overbearing where an adult is involved; that we are dealing with the emotional stability and maturity, or lack thereof, of seventeen year old minors; that the tension and fears pressing doen on the mind of a suspect as the result of prolonged and secret police interrogation must be deemed to be multiplied when the prisoner is an adolescent. This theory, while professing to follow the admitted rule that judgment of this issue involves more than a mere matching of cases, considers the Haley v. Ohio, 332 U.S. 596, 68 S. Ct. 302, 92 L. Ed. 224 (1948) facts so much in point that it would accept as comparable the circumstances of this appeal and those in that decision. The other case particularly stressed is Gallegos v. Colorado, 370 U.S. 49, 82 S. Ct. 1209, 8 L. Ed. 2d 325 (1962) with special reference to that part of the opinion which notes that the defendant in the matter "* * * would have no way of knowing what the consequences of his confession were without advice as to his rights * * * and without the aid of more mature judgment as to the steps he should take in the predicament in which he found himself."
The difference between Haley and Gallegos and these defendants is abysmal. Haley, as that opinion states, 332 U.S. pp. 599-601, 68 S. Ct. pp. 303-304, 92 L. Ed. 224, was "* * * a mere child - an easy victim of the law * * *. Age 15 is a tender and difficult age for a boy of any race. * * * this was a confession wrung from a child by means which the law should not sanction." Young Haley had never been in trouble before and actually did not confess until after he was shown the alleged statements of two confederates which incriminated him. As to Gallegos it is enough to say that he was fourteen years old; that the other boys involved with him were his younger brothers, Charles, age 12, and Richard, age 8.
As we have mentioned, at the hearing in the juvenile court, the judge "* * * announced that * * * the court records before him indicated they (Smith and Stanford) were habitual offenders."*fn5 The argument is made that the Juvenile Court records of Smith and Stanford are not to be considered as weighing too heavily against the other factors to be considered. But what possibly could be a more potent factor to have in mind than the statement of the New Jersey Supreme Court in its opinion unholding the conviction - "There is no suggestion made that this interrogation was a novel experience for them, probably because the juvenile court records earlier mentioned show frequent contacts with the police and courts and the giving of statements in the past."*fn6 (Emphasis supplied). In Smith's confession he said: "We had made no plans to rob this man but when we got on the corner Lee [Stanford] said 'Smith, do you want to get this man' and that is the time I struck the man * *." (Emphasis supplied). The defendants' sophisticated characterization to their friend Parker of their shocking murder of an elderly man the night before and Smith's casual, knowing description of the attitude of himself and Stanford immediately prior to the crime, together with Stanford's query to Smith "* * * do you want to get this man * * *" which Smith answered by knocking the victim to the ground with such force that his skull was fractured and death resulted, all add up to an unmistakable, twisted maturity from which boyish adolescence was long ago and far away. These defendants though young in years were seasoned in crime. They may well have had tensions and fears pressing down on their minds in their realization that they were caught and faced punishment but these were not multiplied because of adolescence in either of them, it was rather because of their awareness of what they had done and the consequences thereof.
The nine and one-half to ten hour period of persistent interrogation urged on behalf of appellants, as it is spelled out in the record, offers a substantially different picture. The State's proofs were that Stanford admitted complicity within from one to three hours and as the State Court opinion narrates "* * * related the details shortly after a detective told him Parker had recounted defendants' statements to him the morning after the killing."*fn7 Smith orally confessed his guilt in about five hours after evidence gathered in the last preceding three hours established that he and Stanford had been together. Smith's wife and Stanford's girl friend were among those interviewed during that period. Also, part of the interlude time was taken up by the defendants' and the detectives' eating. The interim from when Smith orally confessed until the confessions were signed at about 1:30 A.M., was consumed as the State opinion commented, "* * * in trying to iron out discrepancies in details ...