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tive enactments for inquiries into circumstances surrounding crimes by methods that protect both the public and suspects—for example, an inquiry before a magistrate with sealed evidence.

I would affirm this conviction in reliance upon the verdict of the properly instructed jury that this was a voluntary confession.

UVEGES v. PENNSYLVANIA.

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA.

No. 75. Argued November 15-16, 1948.-Decided December 13, 1948. 1. Without being advised of his right to counsel or being offered counsel at any time between arrest and conviction, a 17-year-old youth charged in a Pennsylvania state court under four indictments with four separate burglaries, for which he could have been given maximum sentences aggregating 80 years, pleaded guilty and was sentenced to from five to ten years on each indictment, the sentences to run consecutively. The record showed no attempt on the part of the court to make him understand the consequences of his plea. Held: He was denied due process of law contrary to the Fourteenth Amendment. Pp. 438-442.

2. The due process clause of the Fifth or the Fourteenth Amendment requires counsel for all persons charged with serious crimes, when necessary for their adequate defense, in order that such persons may be advised how to conduct their trials. P. 441.

3. The record before this Court adequately raised the federal constitutional question as to denial of the right to counsel. Pp. 438–439. 4. Since it appears that in Pennsylvania habeas corpus is available to an accused whose constitutional right to counsel has been denied, and since the state does not suggest that it bars a remedy by habeas corpus in the circumstances of this case because no appeal was taken from the original conviction, this Court decides this case on its merits. P. 440.

161 Pa. Super. 58, 53 A. 2d 984, reversed.

Without a hearing, a Pennsylvania court of common pleas dismissed a petition for a writ of habeas corpus to

EXHIBIT 12

Syllabus.

UNITED STATES v. CARIGNAN.

342 U.S.

CERTIORARI TO THE UNITED STATES COURT of Appeals FOR THE NINTH CIRCUIT.

No. 5. Argued October 8, 1951.-Decided November 13, 1951. 1. Having confessed that he assaulted a woman with intent to commit rape, respondent was arrested and duly committed on that charge on a Friday. While in lawful custody on that charge, he was questioned on Saturday and Monday (but not on Sunday) about the murder of another woman during an attempt to commit rape; and he confessed to the murder on Monday, without having been arrested, indicted or committed on that charge. There was no evidence of violence, persistent questioning or deprivation of food or rest. Respondent was told that he did not have to make a statement and that no promises could be made to him in one way or another. Prior to his confession, he was permitted to consult privately with a priest on two different occasions. Held: On the uncontradicted facts in this record, the confession of murder was not inadmissible in evidence under the principles of McNabb v. United States, 318 U. S. 332, and Upshaw v. United States, 335 U. S. 410. Pp. 37-45.

(a) So long as no coercive methods by threats or inducements to confess are employed, constitutional requirements do not forbid police examination in private of those in lawful custody or the use as evidence of information voluntarily given. P. 39.

(b) The McNabb doctrine was not intended as a penalty or sanction for violation of Rule 5 of the Federal Rules of Criminal Procedure. United States v. Mitchell, 322 U. S. 65. P. 42.

(c) Respondent's confession of murder was not given during unlawful detention, because he was being lawfully detained on another charge although he had not been arrested for or charged with murder when the confession of murder was made. Pp. 43-44.

(d) This Court declines to extend the McNabb doctrine to statements to police or wardens concerning other crimes while prisoners are legally detained on criminal charges. P. 45.

2. Issues which were in controversy in the Court of Appeals, but which that court did not decide, are available to a respondent in certiorari as grounds for affirmance of the judgment, even though the respondent did not petition for certiorari. P. 38, n. 1. 3. When the admissibility of respondent's confession was in issue in the trial court, the judge committed reversible error in refusing to

36

Opinion of the Court.

permit respondent to testify in the absence of the jury to facts believed to indicate the involuntary character of his confession. P. 38.

4. The facts in this record surrounding the giving of the confession do not necessarily establish coercion, physical or psychological, so as to render the confession inadmissible. P. 39. 185 F. 2d 954, affirmed on other grounds.

In the District Court for the Territory of Alaska, respondent was convicted of first degree murder in attempting to perpetrate a rape and was sentenced to death. The Court of Appeals reversed. 185 F. 2d 954. This Court granted certiorari. 341 U. S. 934. Affirmed on other grounds, p. 45.

Philip Elman argued the cause for the United States. Solicitor General Perlman, Assistant Attorney General McInerney, Robert S. Erdahl and Beatrice Rosenberg filed a brief for the United States.

Harold J. Butcher argued the cause and filed a brief for respondent.

MR. JUSTICE REED delivered the opinion of the Court. Respondent Carignan was convicted in the District Court for the Territory of Alaska of first degree murder in attempting to perpetrate a rape. Alaska Compiled Laws Annotated, 1949, § 65-4-1. He was sentenced to death. The conviction was reversed by the United States Court of Appeals for the Ninth Circuit. Carignan v. United States, 185 F. 2d 954. The sole ground of the reversal was the admission of a confession obtained in a manner held to be contrary to the principles expounded by this Court in McNabb v. United States, 318 U. S. 332, and Upshaw v. United States, 335 U. S. 410.

The case is here on writ of certiorari granted on the petition of the Government. 341 U. S. 934. The question presented by the petition was whether it was error to admit at the trial respondent's confession of the mur

Opinion of the Court.

342 U.S.

der. The confession was held inadmissible because given before arrest, indictment, or commitment on the murder charge. The confession was given after respondent had been duly committed to jail, Rule 5, Federal Rules of Criminal Procedure, under a warrant which charged that he had, at a time six weeks after the murder, perpetrated an assault with intent to rape.

Respondent advances three additional issues to support the reversal of the conviction besides the above point on detention. First. Error, it is argued, was committed by the trial court in admitting the confession because it was obtained by secret interrogation and psychological pressure by police officers. Second. Further error, it is said, followed from a failure of the trial court to submit to the jury, as a question of fact, the voluntary or involuntary character of the confession. Third. Error occurred when the trial court refused to permit respondent to take the stand and testify in the absence of the jury to facts believed to indicate the involuntary character of the confession.1

The United States concedes in regard to the third issue that the better practice, when admissibility of a confession is in issue, is for the judge to hear a defendant's offered testimony in the absence of the jury as to the surrounding facts. Therefore, the Government makes no objection to the reversal of the conviction on that ground. We think it clear that this defendant was entitled to such an opportunity to testify. An involuntary confession is inadmissible. Wilson v. United States, 162 U. S. 613, 623. Such evidence would be pertinent to the inquiry on admissibility and might be material and determinative. The refusal to admit the testimony was reversible error.

1 Since these issues were in controversy below, they are available to respondent as grounds for affirmance of the Court of Appeals. Langnes v. Green, 282 U. S. 531, 535, 538; United States v. CurtissWright Corp., 299 U. S. 304, 330.

36

Opinion of the Court.

As this error makes necessary a new examination into the voluntary character of the confession, there is no need now to pursue on this record the first and second issues brought forward by respondent, except to say that the facts in this record surrounding the giving of the confession do not necessarily establish coercion, physical or psychological, so as to render the confession inadmissible. The evidence on the new trial will determine the necessity for or character of instructions to the jury on the weight to be accorded the confession, if it is admitted in evidence. Cf. United States v. Lustig, 163 F. 2d 85, 88-89. McNabb v. United States, 318 U. S. 332, 338, note 5. So long as no coercive methods by threats or inducements to confess are employed, constitutional requirements do not forbid police examination in private of those in lawful custody or the use as evidence of information voluntarily given.'

The following summary of the uncontradicted facts discloses the circumstances leading to the confession. Respondent Carignan was detained by the Anchorage police in connection with the subsequent assault case from about 11 a. m., Friday, September 16, 1949. He was identified in a line-up by the victim, and confessed to the assault. Around 4 p. m. on the same day he was arrested and duly committed for the assault. His trial on the assault charge took place subsequent to this confession.

During the time between his detention and commitment for the assault, respondent was questioned by the police about the murder which was the basis of the conviction now under review. A witness who had seen the man involved in the murder and his victim together at the scene of the crime was brought to the police station during this time. From a line-up he picked out respond

2 Ziang Sung Wan v. United States, 266 U. S. 1, 14; Lisenba v. California, 314 U. S. 219, 239; McNabb v. United States, 318 U. S. 332, 346. Cf. Hardy v. United States, 186 U. S. 224, 228.

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