Biggs, Freedman and Van Dusen, Circuit Judges.
VAN DUSEN, Circuit Judge.
This appeal challenges a District Court order denying a petition for a writ of habeas corpus. Relator (age 41 in 1963) was tried by a jury in the Superior Court of New Jersey, Union County, in April 1964 on a charge of murder. He was found guilty of murder in the second degree and sentenced on May 14, 1964, to a term of 20 to 24 years' imprisonment. On appeal to the Supreme Court of New Jersey, relator contended, inter alia, that the trial court should have excluded his oral admissions (recounted by police officers who had interrogated him) and suppressed evidence obtained by the police from his dwelling following his execution of a consent to search. Both the admissions and the consent, he urged, were involuntary and obtained in violation of his constitutional rights. The judgment of conviction and sentence were affirmed by the Supreme Court of New Jersey. State v. Daley, 45 N.J. 68, 211 A.2d 354 (1965), cert. den. 384 U.S. 1022, 86 S. Ct. 1934, 16 L. Ed. 2d 1023 (1966).
The victim, Lillian Oskutis, was found on a parking lot in Elizabeth, New Jersey, at about 6:30 A.M. on September 2, 1963. Her body showed marks of blood and violence, and she had been dead, according to the examining physician, for approximately two hours. Post-mortem examination revealed that she had been intoxicated and that death had been caused by blood clots resulting from injuries to the head.
Relator, it appears, had a casual acquaintanceship with the victim. Both regularly frequented the neighborhood taverns and relator had seen her "around." According to White, relator's companion during portions of the night of September 1-2 and the State's principal witness, Miss Oskutis walked past a certain tavern (having recently departed from another bar) shortly after midnight.*fn1 Daley was standing outside the tavern and a brief conversation between him and Miss Oskutis ensued. Miss Oskutis became abusive and shouted profanely at Daley. Thereafter, according to White, Daley grabbed the victim and forcibly pushed her into the parking lot where she was ultimately found.
None of the State's witnesses, other than White, testified to having seen an assault upon the victim. The State did offer testimony that Daley had blood on his shirt in the early morning hours of September 2 when seen going to and from a diner. It also appeared that Daley had been drinking steadily on September 1; that he was involved in a barroom scuffle with one Roy that night; and that as a result he had suffered an eye injury or gash. The state also offered evidence that Daley's eye had not bled or had not bled sufficiently to account for the blood on his shirt.*fn2
The testimony indicates that Daley slept until afternoon on Sunday, September 1, and that he did not return home until about 5 A.M. Monday morning (September 2). He was back in circulation -- at a local tavern -- by 8:30 A.M. on September 2, and he did not sleep again until after his arrest and interrogation, but he did lie down in an effort to sleep between about 11:30 A.M. and 2 P.M. Under such circumstances, he had had virtually no sleep (perhaps from 5 A.M. to 8:15 A.M. on September 2) from the afternoon of September 1 until the time he executed the consent to the search at about 11 A.M. on September 3 (a period of over 40 hours).
There is testimony that relator had a mental age of 11 in 1956 and of 10 in late 1963, according to tests given in those years. In 1956, Daley was admitted to the Marlboro State Hospital, a mental institution, for a period of 60 days. The hospital's director stated that the diagnosis had been "schizophrenic reaction simple type" and the prognosis "poor". He testified that a mental condition such as Daley had would be characterized by a greater degree of suggestibility and that such a person's tolerance and will to resist would be lower in stressful situations.*fn3 The trial judge recited that "the defense offered considerable testimony as to the mental capacities or incapacities of the defendant"*fn4 which made it "apparent to the Court that the defendant was unable to read and was able to write merely his name and perhaps his address."
The balance of the case against Daley comes from two sources: (1) testimony by police officers as to admissions allegedly made by Daley while he was interrogated between 11:30 P.M. on September 2 and 5:30 A.M. on September 3;*fn5 (2) proof that clothing seized at Daley's dwelling pursuant to the consent to search was bloodstained, and that the blood on such clothing, as well as on his shoes (see page 784 below), corresponded to the victim's blood type and not to Daley's.
During the trial, the trial judge concluded, in a statement from the bench, after a hearing conducted in the presence of the jury, that the oral admissions of Daley were voluntarily given, and that he consented "freely and intelligently" to the search of his room and the seizure of his clothing, thereby waiving his Fourth Amendment rights. In these bench statements, the trial judge found that the relator arrived at Police Headquarters at 11:30 P.M. on September 2, 1963, and was permitted to go to the men's lavatory. His left wrist was then handcuffed to a chair in the office of Detective Captain Brugger and his shoes, which had blood on them, were removed. After an examination by the police physician lasting about one hour, he "was found by the physician [to be suffering from an injury to his left eye and] to have numerous other abrasions and contused areas about his body. * * * He did not in any respect require immediate medical attention. * * * if any pain was suffered, it was very slight, not severe, that the condition of the left eye was merely a matter of irritation and it was not severe." The defendant "was furnished with coffee [and sandwiches at times], permitted to smoke cigarettes whenever he desired".
"Preceding the beginning of the so-called written transcript of the defendant's remarks, the defendant was also taken from Captain Brugger's office on one occasion to confront or be confronted with a material witness named Thomas White and this occurred sometime between 2:15 a.m. and 3 a.m. on the morning of September 3, 1963. After this confrontment, the defendant was returned to the office of Detective Captain Brugger and the interrogation continued. It was only a short time after the confrontation that, as Captain Brugger testified, the defendant stated, 'I did it, I will give you a statement.'"
"The defendant exhibited a desire to wait until the morning to give his statement * * *."
"* * * subsequent to 5:45 a.m. on the morning of September 3, 1963 * * * the defendant was taken from the Detective Bureau on the third floor of Elizabeth Police Headquarters to a cell on a lower floor of that building. He was placed in and remained in ...