Full opinion text
HAYNSWORTH, Chief Judge: In this habeas corpus proceeding, a North Carolina prisoner attacks a confession as involuntary. The case was here once before on appeal from a dismissal of the petition after a review of the record of the state trial. We reversed the summary dismissal, because, while the state court judge made a conclusory finding that the confession was voluntary, there were no subsidiary findings resolving the underlying factual disputes. Upon remand, after a plenary hearing, the District Court made subsidiary findings resolving the factual differences against the prisoner’s claims. On this appeal, we must accept the subsidiary findings, because there is adequate support for each of them in the record, and we think they sufficiently support the ultimate finding that the confession was not involuntary. Outing was contacted as a police informer. A taxicab driver had been slain with a knife-like weapon and robbed. His body was discovered in his taxicab early one morning in an area near a residential section in which Outing’s parents lived and into which Outing, himself, and his wife had just moved. The detectives, searching for leads, sought Outing’s assistance in identifying people who had been seen coming from the area in which the taxicab was found during the early morning hours on that day. Outing gave them some leads and was requested to stop by the detectives’ office that afternoon. Outing went there and gave the detectives some more information which was passed on to other detectives who attempted to verify the information obtained from Outing. Outing was carried home early that night, or part way home according to his testimony, and the next morning, a Friday, two detectives again contacted him. He agreed to go with them after they carried him to a store where he made some purchases and returned them to his wife. Outing’s statements on Thursday about persons he had seen coming from the area where the taxicab had been found had all proven false, and on Friday he was con-, fronted by his uncle and charged with lying. Outing, continuing to give the detectives bits of information, informed them that he had seen someone throw a knife into a wooded area in the general vicinity in which the taxicab was found in the early hours of Thursday morning. Two detectives took him to that area, and the three of them made a fruitless search of it, after which they returned to the detectives’ office. Because Outing had given them so much false information and because of his statement about having seen someone throwing a knife away at exactly the relevant time, the detectives thought that Outing probably knew something about the crime which he was concealing. They had him locked up in the police station. There was no arrest warrant. There was no charge, but at the cell door the detectives told the jailer in Outing’s presence that Outing should be allowed to use the telephone to call whomever he wished, his wife, a lawyer, or a minister. In his testimony, Outing confirms the fact that he was given general permission to use the telephone, but denies there was any suggestion of whom he might call. On Saturday, Outing was returned to the detectives’ office and thence to the area which had been searched the night before. The detectives and Outing are all agreed that until then there had been no effort to extract a confession from Outing. Indeed, nothing had been said by the detectives to suggest that they thought or suspected that he had any direct involvement in it. Except for having been kept in jail Friday night, he was being treated as the cooperative informer he purported to be. When he was questioned, it was about the activities of others, but on Saturday afternoon he changed his story of the day before about having seen someone throwing a knife away to claim that he had been paid three dollars by someone else to dispose of a French knife. In the area being searched, he ultimately led the two detectives to a manhole and, when the cover was removed, there was disclosed a French knife such as he had described. The detectives summoned a photographer to take pictures of the knife before its removal and, at least, one other detective arrived on the scene with him. After the pictures had been made, the newly-arrived detective, Fesperman, who had not previously talked to Outing, fired his pistol once or twice, according to the detectives, two or three times, according to Outing. Here, for the first time, there is wide divergence in the testimony. According to Outing, Fesperman fired in his direction, after which he told Outing that if he did not confess to the murder “the same thing is going to happen to you.” According to the detectives, Fesperman was some thirty feet from Outing. One of the detectives was standing with Outing in apparently idle conversation, and the other two were, generally, in between Outing and Fesperman. They were in a wooded area. Fesperman said he had some old ammunition, and he wished to see if it would fire. He fired into a thicket at some flash bulbs which had been discarded by the photographer, the direction of the fire being away from Outing. The detectives stoutly deny that anyone said anything to Outing resembling the words attributed by him to Fesperman. Indeed, according to the detectives, there was nothing in the firing incident calculated in the least to frighten or intimidate Outing. After Fesperman’s firing of his pistol, one of the detectives walked with Outing out of the wooded area. They sat down on a grassy bank by a road. Outing told the detective he could see his father up on the hill and, according to the detective, presently said that he would like to “get the mess over with” and would like to talk to his wife. Outing confirmed the fact that he asked to speak to his wife without reference to any general declaration that he would like to “get the mess over with." In any event, Outing was returned to the detectives’ office, and his wife was brought there. The two were placed in a room where they could converse privately, Whereupon Outing escaped through a window. The next morning, Sunday, Outing was arrested at the home of a relation of his wife. After his return to the detectives’ office, according to Outing, he was struck and told that if he did not confess, Detective Fesperman would shoot him. According to the detectives, nothing of the sort occurred. He was told that he need say nothing and anything he did say could be used against him, whereupon, after a very short period of questioning, he confessed to the murder-robbery. He refused to sign a written version of his oral confession, but told his father of the crime later that morning. The only real disputes in the testimony concern Fesperman’s firing of his pistol in the woods and what happened on Sunday morning immediately preceding the confession. The District Court accepted the detectives’ version of both events. Their clear, positive testimony supports the findings. We are left then with a case in which the only hallmark of coercion is the illegal detention Friday night and Saturday until his escape on Saturday evening. There was no probable cause to arrest him or to charge him with any crime. The illegal detention was not an incommunicado one, however. While Outing denies that anyone referred to his calling a lawyer, he readily agreed that he and the jailer both understood that he could call whomever he wished. On Saturday afternoon when he asked to see his wife, his request was promptly granted. There is not even a claim of coercive questioning of him during that period. The record discloses no questioning of him whatever on Saturday after the shooting incident. If the detective who testified that, as the two sat on the bank, Outing, after referring to the fact that he could see his father in the distance, expressed a wish to “get the mess over with,” understood this as a statement of a purpose to confess, he did not then pursue it. The record discloses no questioning whatever of Outing after that remark, if it was made, until after he had seen his wife, escaped, and was recaptured on Sunday morning. It is perfectly plain from the entire record that, from the outset, Outing had a compulsive impulse to involve himself. Out of an excessive enthusiasm for his role as informer and assistant to the detectives, he immediately responded with information concerning others, all of which ultimately proved to be false. Not content with leaving matters as they were, he persisted in an apparent effort to prove his worth and usefulness by giving additional information, some of which ultimately involved himself with the disposition of the knife. It may have been an act of stupidity, but he, himself, kept the conversation going, involving himself when further false information about others would no longer suffice. A confession was the inevitable conclusion of the course he had set for himself, and it well may be that by Saturday afternoon he had come to a tentative decision to tell the whole story after talking to his wife. All of this is quite apart from any sense of oppression or coercion from any conduct of the detectives. At least, when we accept the District Court’s resolution of the testimonial conflict about Outing’s claims of crude physical threats and violence, we are unable to say that the single circumstance of the illegality of the detention Friday night and Saturday and the probable illegality of his arrest on Sunday morning required an ultimate conclusion that the confession on Sunday was involuntary. Indeed, Outing’s testimonial claim was that his asserted sense of fear and coercion was born only with the shooting incident, as described by him, on Saturday afternoon. As we have indicated, the record conclusively shows that while detained Outing knew that he could call whom he pleased. When he asked to talk to his wife, he was permitted to do so, and, until Sunday morning, he was never subjected to any questioning which appeared designed to extract a confession or to elicit information incriminating himself. On Sunday when he was questioned about his own involvement, he was first told that he could remain silent. In light of the District Court’s resolution of the disputed testimony, there is no reason to suppose that he had any reason to think that he could not exercise the right if he wished to do so. The promptness with which he confessed thereafter rather tends to indicate that his purpose to involve himself in the case, which was apparent from the outset, had come to its fruition. He was tried before Escobedo and Miranda. The new rules developed in those cases with respect to the right to counsel do not apply here. The case turns entirely on the question of voluntariness of the confession. The indicia of coercion here are minimal when contrasted with the comparatively aggravated circumstances which the Supreme Court has found to compel an ultimate inference of involuntariness. If the District Judge, after resolving the conflicts in the testimony, as he did, had, nevertheless, drawn an ultimate inference of coercion, we might have sustained that finding, but the ultimate inference was initially for the District Judge to draw. His ultimate finding is not clearly erroneous as an inference of fact, and it was uninfluenced by any erroneous view of the law. It, as well as the subsidiary findings of fact, was made by the District Judge after observing the witnesses. Since that ultimate inference of voluntariness was a permissible inference, we accept it. Affirmed. . Outing v. State of North Carolina, 4 Cir., 344 F.2d 105. . According to Outing, he was told that he was being detained overnight to assure his being available to the detectives the next morning for continued assistance as their informer. . Outing was an eighteen-year-old Negro youth, but married and employed. He had some reading and writing skills. The extent of his experience as a police informer is not disclosed. . Outing’s first verbalization of a possible wish to confess came shortly after the shooting incident, but that sequence of events is insignificant for several reasons. The shooting incident, accepting the detectives’ version, was so innocuous that it was not calculated to have any effect upon Outing’s will. The two events were separated by other activity, including a quiet conversation about Outing’s father whom Outing and the detective were watching. The more likely trigger was discovery of the knife, which also shortly preceded the statement. Finally, his statement of a wish to get “the mess over with” after talking to his wife was not the first indication of his purpose to involve himself, for that was evident in his course of conduct from the outset. . Outing made only one statement, the oral confession. He declined to sign or adopt the subsequently prepared writing. When, therefore, the detectives testified that he was told of his right to remain silent and warned that any statement he made could be used against him before Outing “madeJiis statement,” they must have been referring to the oral confession. The matter was not pursued in the District Court, because everyone apparently understood the testimony to have the meaning attributed to it by the District Judge. Outing’s lawyer in this Court so construes it. If we now find some possible ambiguity in the testimony on the point, we are not authorized to proceed upon an assumption that the warnings were vapid formalisms following the oral confession, for the natural reading of the testimony abundantly supports the District Court’s finding that the warnings preceded the oral confession. . 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. . Johnson v. State of New Jersey, 384 U. S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. . See Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895; Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L.Ed.2d 653; Haynes v. State of Washington, 373 U.S. 503, 83 S. Ct. 1336, 10 L.Ed.2d 513; Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037. . See Ledbetter v. Warden, Maryland Penitentiary, 4 Cir., 368 F.2d 490.
FRANK A. KAUFMAN, District Judge (dissenting): “The trial of this case was prior to the date of decision of Miranda v. [State of] Arizona, 384 U.S. 436, [86 S.Ct. 1602, 16 L.Ed.2d 694] (1966), the requirements of which, therefore, are not directly applicable, Johnson v. [State of] New Jersey, 384 U.S. 719 [86 S.Ct. 1772, 16 L. Ed.2d 882] (1966), although relevant on the issue of voluntariness, Davis v. [State of] North Carolina, 384 U.S. 737 [86 S. Ct. 1761, 16 L.Ed.2d 895] (1966).” Clewis v. State of Texas, 386 U.S. 707, 87 S. Ct. 1338, 1339, 18 L.Ed.2d 423 (1967). That comment is as applicable here as in Clewis. The majority opinion in this case answers in the affirmative the question: “Is the confession [of Outing] the product of an essentially free and unconstrained choice by its maker?” Culombe v. Connecticut, 367 U.S. 568, 602, 81 S. Ct. 1860, 1879 (1961) (opinion of Frankfurter, J., joined by Mr. Justice Stewart). I respectfully disagree and would reverse on the ground that the “totality of the circumstances” requires the conclusion that Outing’s confession was involuntary and should have been excluded at his trial as “testimonially untrustworthy.” I suggest that a review of the record in this case clearly negates the factual conclusion that Outing, a seventeen or eighteen year-old Negro, was a “cooperative [police] informer” who out of a “compulsive impulse to involve himself” and “out of an excessive enthusiasm for his role as informer and assistant to the detectives” got “caught in a web of his own weaving [and] apparently thereafter confessed.” To the contrary, the record discloses that Outing got caught in the “web” of his own lies after the Charlotte police themselves first involved Outing in their investigation on Thursday, November 17, 1960, and then continuously incarcerated him from early Friday morning until he confessed on Sunday (except for the hours he was out of their custody following his escape Saturday afternoon), meanwhile affirmatively and negatively failing to follow accepted police practices, North Carolina statutory commands, or constitutional standards. When all the circumstances are considered together, it is not possible for me to conclude that Outing’s confession was “the expression of free choice.” Watts v. State of Indiana, 338 U.S. 49, 53, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949) (opinion of Frankfurter, J., joined by Mr. Justices Murphy and Rutledge); see also Collins v. Beto, 348 F.2d 823, 833 (5th Cir. 1965) (concurring opinion of Friendly, J., sitting by designation). In applying the “totality” test “a detailed account [of the relevant circumstances] is unavoidable.” Culombe v. Connecticut, supra, 367 U.S. at 606, 81 S.Ct. at 1881 (opinion of Frankfurter, J., joined by Mr. Justice Stewart). Thursday, November 17, 1960 The body of James T. Hamilton, a white male taxi driver for the Charlotte Yellow Cab Company, was found in his cab in the early morning hours of Thursday, November 17, 1960. Hamilton had been killed with a knife. All of the personnel of the Charlotte Detective Bureau were promptly put on the alert and assigned to work on the case after Hamilton’s body was found. Lieutenant (later Captain) O. A. Crenshaw, who was in' charge of the investigation, directed that a house-to-house canvass be made of the neighborhood adjacent to the area in which the body had been found. Detective C. A. Allen testified that “they instructed us all if we knew any informers in the neighborhood to try to talk to them and see when the cab had come in there, and so on.” In carrying out Crenshaw’s instructions Allen went to the petitioner’s home, talked with Outing and Outing’s pregnant wife, and asked Outing to help them find out who had done the killing. Outing testified that the first thing Allen said to him on that occasion was to ask him (Outing) if he (Outing) would help him (Allen), “and I told him I would help him the best I knew how.” Outing testified that his sister had told him (Outing) that a man had been found dead but that Allen didn’t say anything to him (Outing) about the finding of Hamilton’s body. Outing testified that the conversation with Allen “was about people who I had seen that night,” that Allen asked him “to describe the guys I saw that night” and that Allen “didn’t say they’d [the people Outing had seen] done nothing.” Outing testified that he told Allen whom he had seen that night. Allen testified that Outing said he would help and that Outing had said “he would like to get part of the reward money” which had been posted by the cab company. Allen testified that Outing “gave me a list of who he had seen that night” and that “he [Outing] named five or six different ones, and we run them down and had them picked up that night.” Outing testified that when his sister told him (Outing) about the discovery of Hamilton’s body, a lady named Mrs. Clyde Miller who lived in the neighborhood had “overheard a conversation that I had with my sister about seeing some guys coming in front of my mother’s house on the 17th day of November, which was on a Thursday; and she told, I guess, Mr. Allen about it.” Outing testified that after his conversation with Allen at his (Outing’s) home “we went down to Mrs. Clyde Miller’s * * * and sit there in her living room; and he [Allen] told me about a reward that the Yellow Cab Company were offering.” Outing testified that he told Allen everything he knew “and so Mrs. Clyde Miller, well, she told me, she say ‘Well, anything else you know would help him [Allen],’ say ‘you tell him.’ ” Allen testified that Outing knew about the reward when he (Allen) arrived at Outing’s home, that “the word had got out that the Yellow Cab Company had put out a reward,” and that he (Allen) didn’t “know how he [Outing] heard the Yellow Cab Company had put out a reward for the killer * * *.” Allen’s testimony contains no reference to Mrs. Clyde Miller or to his having gone anywhere with Outing on this occasion. Outing testified that he talked with Allen on this occasion between 2:30 P.M. and 3:00 P.M. and that the conversation lasted “approximately a half an hour, maybe wasn’t even half an hour.” Allen testified that he returned to Outing’s home later that day and talked with Outing and Outing’s wife. Allen testified that upon that occasion Outing’s wife told her husband “Why don’t you go ahead and tell them the truth ?” Outing’s testimony contains no reference to Allen’s having made a second trip to his (Outing’s) home that day. Allen testified that on his second visit to Outing’s home he asked Outing to come down to the station the next morning and “give us some information.” Outing testified that Allen gave him (Outing) his (Allen’s) card “and told me to come down to the police headquarters.” Allen testified that he returned to Outing’s home that night, picked him up and took him to the station. Outing testified that he went to the station that night by bus. Allen testified that he formed his opinion concerning Outing’s involvement in the crime “after talking to another informer in the neighborhood that night; that George knew more than he was telling us and knew something about it.” According to Allen, Outing “was with us that night a good part of the night.” Detective Jack W. Porter, who did not himself question Outing that night but who testified that Outing had been an informer to other detectives in the Bureau on prior occasions, remembered “working most of the night as a result of what he [Outing] had said to the other detectives.” Detective Porter also recalled that they “worked all day Thursday, all night Thursday night * * The detectives ran down the names given them by Outing. Detective Allen testified that “we picked up colored people all during the night, had five or six, and one of them was about to whip George for lying on him, and George said he lied on him after that * * Allen testified that all of the names furnished by Outing “panned out to be lies” and that Outing admitted he was lying. At an undetermined time during the night, Allen drove Outing from the Detective Bureau to the bus line and Outing returned home. Allen stated that he was only talking to Outing in the latter’s capacity as an informer. Allen was asked on direct examination if he had ever advised Outing that he did not have to talk and if he advised Outing of any of his constitutional rights. Allen did not testify that he ever at any time advised Outing of any of those rights. Friday, November 18, 1960 On Friday morning Detective Allen’s wife received an anonymous telephone call from someone who asked that Detective Allen call a certain number. Detective Allen, who was at home, placed the call at approximately 7:30 A.M. and “was informed that George Outing was the man we wanted * * .Allen testified that the information was “very reliable” and that he was told that Outing “knew where the knife was, that he had been seen up in that vicinity,” but that the informer didn’t tell him that Outing had committed the crime. Allen did not identify the informer by name but stated that the informer was an 80 year-old woman. According to Allen, Outing was supposed to have reported to police headquarters at 7:00 A.M. on Friday morning but “he didn’t come.” Allen testified that “on information that I got on the telephone at approximately 7:30 in the morning, I called the police station and had them have two men pick him [Outing] up.” According to Outing he was picked up by two detectives in a car at around 7:30 or 8:00 that morning as he walked up the street toward his mother’s. Outing testified that the detectives told him they wanted him “down at police headquarters, said Mr. Allen wanted to see me down there again.” The detectives did not, according to Outing, tell him that he was under arrest, and after a brief stop at his home Outing was transported to the station. Outing testified that he was at the station at about 8:00 A.M. and that he was questioned by an officer or officers whom he was unable to identify but that he was not accused of being the killer. Allen indicated that he did not himself question Outing that day or thereafter. Allen did testify, however, that he relayed the information he had received over the telephone to Crenshaw. When Detective Porter and W. O. Homberg arrived at the station on Friday morning they were asked by Lieutenant Haney to talk with Outing. Homberg testified that he had seen Outing in the area in which Outing lived on Thursday and Porter testified that he believed he had seen Outing talking with Allen at the Detective Bureau on Thursday. Neither Porter nor Homberg had talked to Outing on Thursday. Homberg testified that they were told Outing was “an informer.” Neither Porter nor Homberg remembered the approximate time they began questioning Outing Friday morning, but Outing thought Porter first talked to him at about 11:30 or 12:00. Outing stated that Porter first talked to him “a little later” that same Friday, i. e., after the questioning by the unidentified officer or officers earlier that morning, and Porter stated that he believed “someone had already talked with him [Outing] that. [Friday] morning.” Porter further testified that when he first talked with Outing he did not know whether or not Outing had been arrested for the murder of Hamilton. Outing testified that on Friday morning he was requested to take a lie-detector test. He stated that he believed Homberg had made the request. He testified that he then requested a lawyer “because they wanted me to take a lie-detector test.” He testified that his request for counsel was made in the presence of Porter and Homberg and that “they told me I wouldn’t need a lawyer just to take a lie-detector test.” He testified that he then took the lie-detector test in the presence of Porter, Homberg and “the man who was giving the test”' but did not know of the results of the test. Outing testified that he took the' lie-detector test in the city jail, that he did not go out of the building to do it and that “it was downstairs somewhere.” Outing testified that in taking the test-“they put something around my arm and something in my hand, and told me to relax and he would ask me a question and the only thing I could say was yes or no.” Porter testified that they asked Outing to take a lie-detector test but that Outing refused to do so. Porter could not remember when this happened but that. Outing was asked to take the test “to determine if he was lying” and “as an aid in our interrogation.” Porter testified that Outing did not take such a test, that “you had to go out of the building to get to” the police department’s polygraph apparatus, that he was not too familiar with the apparatus and that part of the apparatus consisted of “a thing-to fit on his finger” but that it was not held in the hand. Porter testified that Outing made no request for counsel when he was asked to take the lie-detector test nor to his knowledge at any other time during the investigation. The record discloses very little concerning the early questioning of Outing by Porter and Homberg. Outing testified that he was questioned and that no ■one accused him of being involved in the crime. He also indicated that he was neither “questioned * * * real hard or threatened * * * at any time during Friday.” Porter testified that at this time Friday Outing was an “informant” and “would tell us about people that were involved, and we would go out and find them and interrogate them, ■check the alibis, and so forth.” Porter also stated that “most of the conversation that day was in regard to information he was giving us that we were checking ■out * * It appears that at some point during Friday Outing was questioned by Detectives Dixon and Stroud. The record does not disclose the time or times when such questioning took place. Porter testified that on Friday night Outing told Dixon and Stroud that he would take them and show them where “the knife” was. Porter testified that Dixon and Stroud “came in and said that Outing wanted to show them where the knife was, and asked us if we would go with them, and we did.” Homberg testified that Outing “was going to take us out and show us a bayonet-type knife that he had seen and had covered up with leaves.” Outing denied that he had told “the officers there was a knife out there.” Detective Porter testified that at the time they left to go out and look for the knife he suspected that Outing “was either involved or — he had knowledge of it or was involved, one of the two * * He stated that he “became suspicious when we ran down lead after lead that he had given us and nothing panned out.” He indicated that he thought Outing was lying and had formed an opinion that Outing must be involved in it. Porter stated that he “suspected him of having knowledge or being involved, maybe not alone.” Porter testified, however, that he did not remember that during Friday he had questioned Outing regarding Outing’s participation in the robbery or murder. Detectives Porter, Homberg, Dixon and Stroud took Outing to a wooded area near where the body of Hamilton had been found on Thursday and near where Outing lived. A portion of this area was described by Porter as being “a real thickly — almost like a jungle — honeysuckle, thickets, and briars, and so on * * The Friday trip to the wooded area took place at night. Neither Porter nor Outing were able to recall at what time Outing was taken to the wooded area. Porter, however, testified that “it was dark.” Outing testified that he didn’t know why he was taken to the area though he had asked why. Outing further testified that he was handcuffed at that time. Porter, when asked in relation to the events which occurred on Saturday if they had been handcuffing Outing wherever they had carried him, testified that he didn’t “recall if we had handcuffed him before * * None of the testimony offers details as to what transpired in the woods Friday night. Homberg testified only that Outing “carried us out there and put us on a rabbit hunt, that’s all.” Nor does the record disclose whether or not Outing was informed that he did not have to go with the detectives to the wooded area on Friday night. According to Porter they “weren’t gone but a short while.” Porter testified that he could not recall what time it was they brought Outing back from the woods. Upon returning from the wooded area that night Homberg and Porter locked Outing up in a police cell. Homberg testified that Outing was placed “in custody” at this time. Neither Porter nor Outing remembered what time it was when Outing was placed in jail that night. Homberg testified that to his knowledge Outing had not been arrested when they locked him up Friday night. Homberg testified that they thought they had somebody who knew something about the murder. Homberg testified, “I suspect I would have to say that he [Outing] was being held as more of a material witness than he was a person that was to be charged with the crime.” When asked why they didn’t let Outing go home Friday night Homberg testified: “I don’t recall.” Porter indicated that at that time Outing had been arrested “for investigation” and testified that “he was being held for investigation of this [Hamilton’s] murder.” Detective Porter testified that he didn’t know who made the decision to keep Outing in custody that night or who ordered Outing’s commitment. Porter testified that he believed “that an arrest sheet had already been made on him [Outing] at that time” but was not sure who had filled it out. Porter further testified that a warrant had not been served on Outing at the time he was locked up. Homberg testified that an arrest warrant charging Outing with the murder was first drawn up after Outing’s escape on Saturday and that to his knowledge it had not been served at the time Outing made the confession on Sunday. Porter testified that he told Outing “that he was being held for investigation of this robbery and murder.” Porter testified that he was not sure whether he told Outing Friday night that he (Porter) suspected him (Outing) of being a participant in the murder. Porter testified that to his knowledge no one else told Outing Friday night that he was being held for investigation as a participant in the murder. Outing testified that he asked Homberg why he was being locked up but that Homberg wouldn’t say beyond telling him that he was being locked up “for Saturday morning, because they wanted to talk with me ‘in the morning.’ ” Outing also testified that he had not been accused of being the killer. Porter testified that when they got to the cell door Homberg told the jailer to allow Outing “to call anyone that he wishes to call, his minister, his family, or an attorney, and to let him see anyone that came to the jail to see him.” Porter testified that Homberg made this statement in the presence of Outing, the jailer, and himself. At another point Porter testified that “we simply told the jailer to allow him to make any call to anyone that he wished to make it to.” Outing testified that he was told in front of the jailer that he could make a telephone call if he wished, “but to whom they didn’t say.” Outing testified that “they didn’t tell me about calling me no lawyer.” Outing testified that he (Outing) “didn’t know any lawyers there in Charlotte.” Porter testified that Outing was not advised at this time that he had a right to an attorney. Porter testified that he did not tell Outing that he did not have to say anything. Porter and Homberg also testified that no one had told Outing that anything which he did say could be used against him. Homberg testified that no bond was set for Outing by Friday night and that he was not carried before a magistrate. Both Porter and Homberg testified that at some time Friday evening (whether before or after the trip to the woods that night is not apparent) Outing’s “uncle confronted him [Outing] and told him that he was telling a lie on him [Outing’s uncle].” Homberg testified that the person who came to the station on this occasion was one George Williams, who Outing identified as his uncle, but that George Williams said that Outing was his son. Outing denied that his uncle came to the station on Friday night, denied that George Williams was any relation to him, and testified that he didn’t know if George Williams had come to the police station on Friday night. Homberg testified that in his opinion Outing was an informer up until Friday night. Homberg testified, however, that at the point when Outing was confronted with George Williams he first formed an opinion that Outing “could have been involved in it or knew about it.” Homberg testified that at that point he “felt like he [Outing] was involved or that he knew more than he was letting on.” Porter had formed such an opinion before the trip to the wooded area Friday night (see above) and testified that he suspected Outing to be the “prime suspect” in the case from Friday. Homberg testified that Outing’s confrontation with his uncle and “the other leads he had given us to check out” gave them “reasonable grounds to believe” Outing to be a suspect as such in the case. Porter testified that he worked late Friday night. Outing testified that after he was put in jail that night no one questioned him about the case or otherwise during the night. Saturday, November 19, 1960 Outing testified that “they” started questioning him again on Saturday “early in the morning * * Porter testified that he slept late Saturday morning and that he first saw Outing late that morning. Homberg was unable to give an approximation of the time at which he reported for work Saturday morning, but testified that when he and Porter did report for work they “were assigned to interview and interrogate George Outing” and indicated that at that time Outing was placed in their exclusive custody. Homberg testified that the case “was discussed [apparently either on Friday night after the trip to the wooded area or on Saturday morning] with our supervisors, and from that time on, from Saturday morning on, George Outing was our prisoner.” Porter testified that he did not know whether or not Outing had been questioned between the time he and Homberg locked him up Friday night and the time they saw him Saturday morning. After taking Outing out of the lock-up, Porter testified that he and Homberg went out and bought Outing and themselves breakfast. At around noon or one o’clock that afternoon Detectives Porter and Homberg took Outing back to the wooded area they had visited Friday night. Outing testified that he was handcuffed when they left the police station. Porter testified that he and Homberg took Outing back to the wooded area on Saturday because “he told us Saturday that he wanted to take us and show us where the knife was.” Outing testified that he and the two detectives went to the street on which Outing lived and Homberg removed the handcuffs. Outing testified that the three of them proceeded past the apartment where Outing lived and then down to the place where Hamilton’s body had been found. Outing testified that Homberg then asked him if he knew where the cab had been found and that he (Outing) had answered in the negative and that Homberg had said “Well, the cab was found right along in here somewhere.-” Outing testified that “Then we went on up through the woods.” Outing testified that Homberg (he believed it was) told him: “George, we believe that you know something about it.” Outing testified that he had responded: “Well, I don’t know anything about nothing.” Outing testified that Homberg then said: “Well, we done checked you out and found everything you told us not be true.” Outing testified that he then said: “Well, I can’t help that. I told you what I seen.” When asked when Outing had first been “directly accused of being involved in the killing itself,” Homberg testified: “I guess you would say after he had escaped [on Saturday] and been apprehended [on Sunday].” Porter testified that after they took Outing into the woods on Saturday afternoon that he (Porter) told Outing “that I thought he was involved, that he knew too much about this thing not to be involved.” It is unclear from Porter’s testimony as to the precise time he made this statement to Outing. Porter testified that prior to Outing’s being taken to the wooded area on Saturday no one had advised Outing in his (Porter’s) presence that he (Outing) did not have to take the detectives to the woods or that he did not have to say anything he did not wish to say or that anything he did or said could be used against him in a criminal action. Homberg’s testimony was that Outing was not advised of his constitutional rights in hi.s (Homberg’s) presence until Sunday morning. Porter testified that Outing led the detectives to a spot in the woods “where he said he [Outing] thought he [Outing] threw the knife.” Porter testified that the next “three hours or several hours” were spent “going from one place to another that he said he threw the knife.” Outing testified that after he had told Homberg he “didn’t know anything about it” that “we kept prowling around in the woods until we run across this manhole.” Porter testified that Outing had led them to the “manhole cover * * * where he said a boy gave him $3.00 to hide this knife.” Outing testified that he had not told Homberg or Porter that a knife was in the hole or that anyone had given him money to hide a knife. Porter testified that “we took the manhole cover off and there was a large French knife.” Outing testified that he assisted in taking the manhole cover off but stood back while Homberg or Porter looked into the hole and that Homberg or Porter “said something about, ‘there’s the knife there.’ ” Outing testified that he himself did not look in the hole and never saw the knife in the hole. Porter testified that when the knife was found he didn’t believe that someone had paid Outing to dispose of it. Porter testified that “after the knife was found, we called for identification officers to come down and photograph the knife.” According to Porter: “Shortly after, Mr. Fesperman came down * * * ” Homberg testified that to his knowledge Detective Fesperman had not had any prior conversation with Outing during the course of this investigation. Outing testified that he had not seen Fesperman prior to Saturday. Apparently Fesperman and a photographer arrived at the scene accompanied by other detectives, though how many is not clear. Homberg testified that when Fesperman arrived he (Fesperman) said “What have we got here?” and that he (Fesperman) had then looked down into the manhole to observe the knife. Homberg testified that as far as he could recall Fesperman had said nothing else. The photographer took some pictures. At some point after his arrival, the exact time being unclear, Detective Fesperman fired one or two or two or three shots from his pistol in the presence of Outing. Porter testified that at the time the shots were fired he was standing with Outing and “we were directing the photographers on what photographs we wanted, and so on.” Outing testified that he had backed away from the manhole and was standing alone. Porter testified that he was standing about eighteen feet from Fesperman when the shots were fired, that he was not “paying too much attention to what Mr. Fesperman was doing” and that prior to firing the shots Fesperman “made some comment about the ammunition in his gun being real old and he doubted if it would shoot.” Homberg testified that he was standing five to eight feet from Fesperman, that he had no advance warning that the shots were going to be fired, that he heard “no comment at all,” and that the shots startled him. Porter testified that the photographer had discarded some used flashbulbs. Porter further testified: “If I recall it correctly, I believe I heard Mr. Fesperman say that he had some ammunition in his revolver that was real old, or something to that effect, and that he didn’t know if it would even fire or not; and then he fired at a light bulb which had been thrown up here where there were some small trees or a little wooded area.” Porter testified that he had discussed the shooting with Fesperman “several times” afterwards and that the two of them “discussed it since we found out we had to come up here, as one officer would to another.” Porter testified that “we talked about why he [Fesperman] had shot, and that’s what he told me.” Outing testified that no one had mentioned anything to him about shooting before the shots were fired and that the first indication he had about the shooting was when the gun was fired. Porter testified that Fesperman had not addressed any remarks to Outing before he fired the pistol. Outing testified that the first time he noticed the pistol in Fesperman’s hand was after it was fired. Porter and Outing differ in their versions of the physical relationships of the persons present at the time of the shooting. Homberg agreed with Porter’s version. Porter testified that there were some “trees or a little wooded area” about 18 feet above and to the right of the manhole and that the light bulbs were up in the wooded area and were “approximately 30 feet, maybe a little farther” from the manhole. Porter testified that he and Outing were standing together about three feet apart from one another to the left of the manhole. Porter testified that Fesperman was on the side of the manhole opposite from where he and Outing were standing and that Fesperman was standing about 18 feet away from himself. Porter testified that he didn’t know where “the other people were” but that there were several people standing between Fesperman, on the one hand, and Outing and himself on the other hand. Porter recalled that he himself was standing between Fesperman and Outing. Outing testified that he was standing alone to the left of the manhole and that both Fesperman and Porter were standing to the right of the manhole. Outing testified that Fesperman was standing about nine feet away from himself. Outing testified that he did not know how far Porter and Fesperman were standing from each other but that Fesperman was closer to him (Outing) than was Porter. Outing testified that he couldn’t recall where Homberg was standing but that the photographer was standing further to the right of the manhole than Porter or Fesperman and that Porter or Homberg “was over there talking to the photographer * * Homberg testified that he was positioned at the manhole when the shots were fired. Porter testified that “Mr. Fesperman shot in the direction of one of the bulbs.” Outing testified that he “didn't see any flashbulbs,” that he did not know where the first shot was fired, but that the second bullet hit the dirt “about six or seven inches from the place where I was standing at.” Outing testified that “right after” Fesperman fired the shots he (Fesperman) said to him (Outing): “George, * * * if you don’t confess to this crime, the same damn thing is going to happen to you.” Outing testified that he didn’t say anything in response. Porter testified that Fesperman did not address any remarks to Outing before he fired or at the time he was firing or after he fired. Porter testified that he did not hear anyone tell Outing that if he didn’t go ahead and admit the killing of Hamilton the same thing would happen to him. Homberg testified that he could recall no conversation between Outing and Fesperman and that he (Homberg) “heard no comment at all.” Porter testified that Outing was not threatened at all. Porter testified that after Fesperman fired the shots he (Porter) and Outing walked to a little bank and sat down. Porter testified that “there was some conversation between Outing and I about his father who had just walked up here to where Celia and Rosetta [Streets], I believe it is, would have intersected had they gone far enough to join; and he called to my attention that his father was up there on the hill, and we walked up then and set down on this little bank while we waited for the photographer to finish.” Porter testified: “That’s when he [Outing] said he would like to get this mess over with or something to that effect, and he [Outing] said, T would like to talk with my wife and then tell you all about it.’ ” [When asked during the plenary proceeding in the District Court if he had told the detectives that he wanted to talk with his wife Outing testified: “Yeah, they got my wife down there.”] Porter testified that this was the first time Outing said this and that he (Outing) said it “a matter of a few minutes” after the pistol shots. Porter testified that prior to finding the knife in the manhole Outing had denied killing Hamilton though he had been asked if he had done it. Homberg testified that Outing had not admitted any participation in the crime on Saturday. Porter testified that he could not recall Outing having made any remarks to him at the time of or following the shooting with respect to the firing of the pistol. Porter testified that there was no discussion between Outing and himself concerning the shooting, that he did not notice any effect on Outing as a result of the shooting, and that he could not recall whether Outing had jumped when the pistol went off. Porter testified that the shooting incident “seemed very insignificant to me at that time; I didn’t have my mind on that at all.” Porter testified that they were out in the woods for approximately three or four hours. Shortly after Outing’s statement to Porter, Outing was taken back to the station. Porter testified that after they returned to the station “we got his wife down there and let them go into a little room by themselves * * Outing testified that he told his wife that they were trying to connect him with the crime and that she had said “Well, ain’t nothing you can do about it.” Outing thereupon escaped by jumping out of the window from the second floor of the detective bureau. Homberg testified that this “was after it had gotten dark.” Outing testified that he believed Fesperman would carry out his alleged threat and that he “jumped out the window that Saturday night because I was scared he [Fesperman] would kill me.” Outing testified that he went to his wife’s cousin’s. Porter testified that prior to this time Outing had not attempted to escape. Porter and Homberg both testified that at the time of his escape Outing had not been informed that he was under arrest for the murder and that a warrant against him had not been signed. Sunday, November 20, 1960 Porter testified that on Sunday morning Outing was picked up by police officers. Outing testified that he was picked up by detectives at his wife’s cousin's and that either Homberg or Porter was among them. Porter testified that he did not know who the officers were. Outing testified that one of the ■detectives came into the house; told him “You’re the man we’re looking for”; handcuffed him; and carried him to the police station. Outing testified that the detectives did not have a warrant for him, ■did not read a warrant to him and did not at that time tell him that they were going to charge him with murder. Homberg testified that he came to work around 6:30 Sunday morning and at that time was informed that a telephone call had been received as to Outing’s whereabouts. Homberg testified that he went out with two patrolmen, who apprehended Outing, handcuffed him and brought him to the Detective Bureau. Porter testified that Outing was at the police station when he (Porter) saw him (Outing) Sunday morning and that “it was early, around 7 or 7:30.” Porter testified that he and Homberg interviewed Outing in a room at the Detective Bureau and that just the three of them were in the room. Porter testified that Outing confessed “after interrogating him for some time” but that “it wasn’t very long” after he (Porter) had begun to engage him (Outing) in conversation that the confession came. Porter testified that “at first he [Outing] was real apologetic for escaping and said that he would like to get this whole thing cleared up.” Porter testified that Outing was cooperative, “very much so,” on this occasion and Homberg testified that Outing was “very cooperative all the way along the line * * Outing testified that he was taken to one of the detective’s offices in the jail and that “they started questioning me about the crime, and I was in the room with these men, the detectives.” Outing testified that there were four or five detectives in the room but that he could only identify Porter or Homberg as being among them. Outing testified that "they wanted me to tell them that I committed this crime.” Outing testified that “they told me, say, ‘George, we know that you committed this crime. You just go ahead and tell us that you did it.’ ” Outing testified that he denied doing it. Outing testified that the officers struck him in the face and stomach with their fists and hands but that the beating did not leave marks or break the skin and that he did not bleed. Outing testified that he did not know how many times he was struck, that he did not recall who had struck him, but that “it was more than one,” that one of them had civilian clothes on and that Porter was there at the time. Outing said that he was told he was being beaten “because I knowed something about the crime, and they wanted me to go ahead and tell them that I committed the crime.” Outing testified that he confessed because of the beating and because “I was afraid Mr. Fesperman would probably kill me if I didn’t.” Outing testified that he said he committed the crime “because I had no other alternative” and “he told me to say it, and I was scared, and I did.” Porter testified that he did not strike Outing and that “he was not mistreated in any way.” Homberg testified that Outing was “never struck in my presence or in Mr. Porter’s presence to my knowledge.” Porter testified that Outing confessed to Homberg and himself together and told them everything about the whole thing “from stem to stern.” Outing also testified that he made an oral confession in the presence of Porter and Homberg. Porter testified that this was the first time Outing admitting the killing. Porter testified that Outing made an oral confession first and that the statement that Outing gave was then typed by Dixon or Dixon’s secretary. Porter testified that the typed statement was read to Outing and that Outing was requested to sign it but that Outing said he did not wish to sign it and did not sign it. Outing testified that he was not shown a piece of paper after the oral confession and that a statement was never read to him. The District Court found that “petitioner was advised, before making the statement * * * that any statement he made could be used for or against him * * (District Court’s Finding No. 11) (emphasis supplied). Outing testified that he was never informed that anything he said could be used against him. Porter’s complete testimony relative to such advice was as follows: Q. Was he advised that anything he said might be used against him in a criminal action ? A. He was, sir. Q. Who advised him of that ? A. I don’t recall. Q. Do you recall whether or not it was you? A. No, sir, I do not. Q. And you say you and Mr.who was present at that time? A. Mr. Homberg and I. Q. Do you recall the words that were used? A. No, sir. I have it in the statement if you would like for me to read it. Q. All right, sir, would you relate back to that, please, sir. A. (Reading) ‘In the alleged robbery and killing of James Tyree Hamilton, white male, 413% State Street, Charlotte, North Carolina, at approximately 1 A.M., November 17, 1960, I make this statement of my own free will and accord, without any promises or threats, knowing that my statement can be used for or against me in court * * *.’ Q. .Now, what are you referring to there, please, sir? A. This is the statement that was typed, the statement that he gave us. Q. Did he sign it? A. No, sir. Q. He did not sign it ? A. No, sir. Q. Was he requested to sign it ? A. We asked him to sign it if he wished to do so. Q. Do you know whether or not he read it? A. Yes, sir, it was read to him. Q. Now, that statement was typed after he made the confession? A. He made the oral confession first. The statement was typed by Mr. Dixon or maybe his secretary. Q. Now, the part about him saying in the typed statement which he did not sign that he knew that anything he said might be used against him, that part was typed after he made the confession, was it not? A. He was told that. Q. All right, sir. But you say you don’t recall who did tell him? A. No, sir. •X- X -X- X X X X Q. And do you recall that he was advised he didn’t have to make a statement if he didn’t want to ? A. That is correct. Q. You advised him it could be used against him later on ? A. Yes, sir, for him or against him either one. Homberg’s complete testimony relative to such advice was as follows: Q. Were you present when he gave the confession to Mr. Porter? A. Yes, sir. Q. Do you recall whether anyone advised him whether or not he did not have to say anything if he did not want to? A. I don’t recall whether it was Mr. Porter or myself who instructed George that if he said anything it could be held against him or used for him in a court of justice. Q. Now, was that before he made the statement ? A. Yes, sir. Q. When was the first time you heard anyone tell him that? A. Make that statement I just made? Q. Yes, sir. When was the first time that he was told that in your presence — what day? A. This was Sunday morning. Q. Had you heard anyone else tell him that prior to that time ? A. That if he hold us anything, it could be used for or against him? Q. Yes, sir. A. I hadn’t heard him, no sir. Q. You are speaking of Sunday morning, November 20, 1960? A. That’s right. The District Court found that “petitioner was advised before making the statement that he did not have to make a statement * * (District Court’s Finding No. 11) (emphasis supplied). Outing testified that he was never informed that he did not have to say anything. The complete testimony, given by Porter, relative to the giving of such advice was as follows: Q. And did you tell him at that time [Friday] or at any time that he did not have to say anything that he did not wish to say to you regarding the investigation? A. Not at that time, no sir. Q. When did you ever tell him that, sir? A. On the day we took the statement. Q. What day was that ? A. That was on Sunday. Q. That was on Sunday ? A. Sunday morning, yes, sir. *•**#* Q. And before the statement was taken, do you recall whether it was you or Officer Homberg that advised him that he didn’t have to make a statement? A. I don’t recall. Q. It was just the two of you and the defendant in the room ? A. Yes, sir. Q. It was one or the other of you? A. Yes, sir. Q. And you do recall that he was advised he didn’t have to make a statement if he didn’t want to ? A. That is correct. Porter testified that Outing was not advised about his right to consult an attorney. Outing testified that he was not advised that he had a right to counsel. The transcript contains no testimony from Homberg relative to the giving or absence of such advice. The District Court found that “petitioner * * * was not advised that he had a right to counsel * * •■.” (District Court’s Finding No. 11). Porter testified that on Sunday after Outing “had confessed and given us a statement” he was questioned about the unsolved murder of a Mr. C. D. Campbell. Porter testified that: “He [Outing] was not interrogated. We simply asked him if he had any information that would prove valuable to us in solving the case.” Porter testified that Outing was not told that he would be charged with the murder of Campbell if he did not confess to Hamilton’s murder. Porter testified that Outing “was not asked about that one [the Campbell murder],” that “we were simply seeking information,” and that Outing “told us how he thought it was committed.” Outing testified that he was told that his father was coming to the station and that about an hour after the confession his father came down to the station. Outing testified that “they wanted me to tell my father that I committed that crime or they were going to let Mr. Fesperman carry out that what he said he was going to do to me.” Outing testified that he told his father that he did it. Outing testified that Detective J. W. Severs was in the room when he said this to his father. Severs testified that he heard Outing’s father say, “What about it, Son?” and that Outing said “I did it, Dad.” Severs testified .that both he and Homberg were with Outing and his father at the time. Homberg also testified that Outing told his father that he had committed the crime. Porter testified that at an undetermined time after Outing confessed on Sunday, he (Porter) took Outing back to the wooded area they had previously visited on Friday and Saturday. Subsequent to Sunday, November 20, 1960 John York, a reporter for the Charlotte Observer, testified during the hearing in the District Court, that he had been a reporter for the same newspaper in 1960 and that he had covered the Outing case for his newspaper “from the beginning.” York testified that at some time “just prior” to Outing’s trial he (York) had gone to talk with Outing in jail. York testified that at the time of his visit to the jail Outing was represented by counsel and that he (York) had known that Outing was so represented and that he (York) knew the identity of Outing’s counsel, who was Mr. Charles Bell. York testified that he could not “specifically remember asking Mr. Bell to allow me to