EXHIBIT 14(h)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 14023

MILTON LEO MALLORY, APPELLANT

V.

UNITED STATES OF AMERICA, APPELLEE

On Appellant's Motion to Remand and on Appellee's Answer to Order to Show Cause why the Judgment of the District Court should not be vacated

Decided March 31, 1958

Mr. E. Lewis Ferrell, with whom Mr. Thurman L. Dodson was on the motion, for appellant.

Messrs. Lewis Carroll and E. Tillman Stirling, Assistant United States Attorneys, with whom Mr. Oliver Gasch, United States Attorney, was on the answer, for appellee. Mr. Thomas A. Flannery, Assistant United States Attorney, entered an appearance for appellee.

Before PRETTYMAN, WILBUR K. MILLER, and BAZELON, Circuit Judges.

PRETTYMAN, Circuit Judge: Mallory was indicted, tried by jury, and convicted upon a charge of carnal knowledge of an eight-year-old girl. He was sentenced to serve two to seven years' imprisonment. He appealed and then filed a motion to remand to the District Court for consideration

2

under Andrew Mallory v. United States.1 The matter is before us now on that motion. At the trial of our present appellant, Milton Leo Mallory, certain confessions were admitted in evidence. His point now is that the receipt of those statements was error.

The offense allegedly occurred somewhere around seven or seven-thirty on Thanksgiving night, 1956. The child immediately reported the affair to her mother, who called the police. Officers responded to a radio call at 7:53 p.m. They found Mallory in the neighborhood and after a brief inquiry sent him by car to police headquarters. Mallory testified he had drunk a fifth of wine that afternoon and was "pretty high". The police testified he was incoherent. Officers searched the room where the child said the offense took place, finding there a cigarette lighter which was later identified by Mallory as belonging to him. The police sent the child to a hospital, where she was examined. At headquarters a line-up sheet and a prisoner interview sheet were prepared, and appellant was questioned about the offense and asked about the lighter. He was given tests for the presence of blood on his private parts. Mallory indicated in his testimony that the questions that night were few in number. He denied any part in the crime. He was then put in the cell block, and nothing further happened until morning. At about nine o'clock the next morning a police officer questioned Mallory, and he admitted guilt. This questioning lasted only five or ten minutes, according to the officers' testimony. Mallory testified that the officers simply told him the child had been checked at the hospital and he might as well say he did it; that they "would go easy on" him

1 354 U.S. 449, 1 L.Ed.2d 1479, 77 S.Ct. 1356 (1957).

2 This court issued a rule to show cause why the judgment should not be vacated. An answer to the rule was filed by the United States.

if he said he did it. The officers testified that no promises were made. Both Mallory and the officers testified that he was told he did not have to make a statement unless he wanted to and that the statement would be used either for or against him depending upon what the statement was. The statement was typed, read back to Mallory, and signed by him. During this time the complaining child, her mother, her grandmother, and Mallory's common-law wife were brought in, and the child recited her story of what had happened. Mallory admitted, in the presence of these people, that he had had intercourse with the child. He was arraigned sometime before noon.

Mallory's version of the matter, in his written statement and in his verbal statement before the police, the complainant, her mother, et al., was that the child had proffered intercourse for a small sum of money and that if he had not been drinking he probably would not have done it. At the trial Mallory denied any and all relations whatever with the child; he said he had been drinking and fell asleep. The written statement was introduced at the trial as an exhibit, and the mother, the grandmother, and the officers testified to the oral statements.

We think the confessions were admissible. There is no evidence of prolonged or intensive questioning. Mallory agrees he was "pretty high" on wine when he was arrested and that the questioning that night was cursory. He agrees that the next morning the officers simply told him the child had been checked at a hospital and he might as well admit the act, and that he at once admitted it. He agrees that he made the recitation to the group of women. There seems to us to have been no unnecessary delay in arraignment. The arrest was made somewhere around eight o'clock in the evening on a holiday. The arrested man was drunk, or nearly so. He was arrested on a small child's story, and even though the hour was late the officers checked her story by medical examination,

Anyone familiar with hospital procedure knows these things take time.

The only way we see to find unnecessary delay in this case would be to hold (1) that the half-drunken man should have been forthwith arraigned, even though he could not have pleaded intelligently, or (2) that the child's story should not have been checked, or (3) that Mallory must have been arraigned at midnight. Even then, such a holding would have to be made in the face of the facts (a) that no prolonged questioning took place at any time and (b) that Mallory was warned before he signed a statement. We think neither the decision of the Supreme Court in the Andrew Mallory case, supra, nor any authority requires or justifies a finding of error in this matter. The motion to remand is denied and the order to show cause dissolved.

BAZELON, Circuit Judge, dissenting: A police officer arrested appellant at 8:00 P.M., on November 22, 1956, and, after questioning him at the scene, sent him by scout car to police headquarters to await further investigation. After some time the officer himself went to headquarters, had appellant brought from the cell block to the office of the Sex Squad and questioned him further. Thereafter, appellant was given certain chemical tests for traces of blood and was taken back to the cell block. Throughout the interrogation by the arresting officer, appellant denied guilt. No effort was made to bring appellant before a committing magistrate as Rule 5, FED.R.CRIM.P., commands shall be done "without unnecessary delay."

The next morning at about 9:00 A.M., appellant was questioned again by two other officers for a period which they say "wasn't much over five, ten minutes" and he

confessed to them that he had had intercourse with the child. They asked him if he cared to make a statement in writing, telling him that he was not required to do so and that, if he did, it could be used in evidence. This statement of his rights was not given to him before he orally confessed and at no time was he told that he had a right to have a lawyer and appear before a magistrate before making a statement. Appellant agreed to make a statement in writing. At 9:13 A.M., a police typist began to type his confession and at 9:32 A.M. it was finished and signed. After the statement had been signed, appellant was confronted with the child and her mother and, in their presence, repeated his confession. Then, some time before noon, the police took him to the Municipal Court where he waived preliminary hearing and was committed to jail.

Appellant admitted at the trial that he had made the confession, but testified that the statements contained in it were untrue. He said he confessed because the officers told him to and because they said they would "go easy" on him if he did. He said further that he had been brought up in the South to do what white people tell him to do. The officers who obtained the confession, on the other hand, testified that no threats or promises of any kind had been made to appellant.

If the issue were whether the confession was voluntary, clearly the jury could have chosen to believe the police officers' testimony rather than appellant's. Indeed it would usually (or nearly always) be unrealistic to assume that a jury would take the word of an accused felon over the assurances of officers of the law when there is a conflict of testimony as to what transpired behind the closed doors of the police station. Short of exhibiting welts and bruises, the accused has no way of proving that he confessed involuntarily. Yet experience teaches that police testimony that they used no improper inducements is not always reliable. See 3 WIGMORE, EVIDENCE $851(a) (3d