were obtained while the accused was held in illegal custody, if that fact alone made their use a violation of due process. In each case, however, the Court fully and carefully considered the question whether the confession was voluntary and in each decided that it was not.
The question then being whether Mayo's confessions were voluntary, this Court must proceed to an examination of the entire record, both the testimony at the hearing here and upon the trial for murder. In the ordinary case, a federal court does not concern itself with issues in dispute but accepts the findings of the state court upon them. 'On review here of State convictions, all those matters which are usually termed issues of fact are for conclusive determination by the State courts and are not open for reconsideration by this Court.' Watts v. Indiana, supra (338 U.S. 49, 69 S. Ct. 1348). A peculiarity of the present case is that the issue now before this Court was not raised in the State Court or determined by it. Although Mayo testified fully as to his interrogations, stressing his lack of sleep and the misleading statements of the police, there seems to have been no serious contention made that the confessions were not voluntary. The whole effort of the defense was evidently to convince the jury that the confessions were untrue and to explain why the defendant, as an innocent man, had been led to confess.
The issue of voluntariness, if in the case at all, was only faintly in the background. When the written confession was offered no effort was made to exclude it nor was the testimony relating to the oral confessions objected to. No request was made to the judge to charge the jury that if they found the confessions to be involuntary they would wholly disregard them and no definite instruction to that effect was given by the Court. The only reference in the charge to the voluntariness of the confession was a statement by the judge to the effect that if the jury should find that it was not voluntary then they would have to apply a more severe test to the remaining circumstantial evidence to the case than if the confession stood. Inasmuch as the issue now raised has never been resolved by the Court and jury in the State Court, this Court must examine it de novo.
A careful consideration of the whole record leads to the conclusion that the confession was voluntary, and I so find.
It is the relator's contention that his confession in effect was coerced because it was obtained by a line of confusing questioning, false statements of fact, sham identifications and misleading advice given him by the police while he was in their hands which, combined with his exhausted condition and the nervous strain he was under, induced him to plead guilty and fabricate a confession in the belief that it was the only way to escape a conviction before a jury and a probable sentence of death.
Undoubtedly Mayo was, from the time he was arrested, under great nervous tension, aggravated, it may well be, by the lack of sufficient sleep, but no one reading the testimony here in this Court and the record of the trial could conclude that he was at the time he confessed, or at any time for that matter, 'stupified' as he testified or that he 'could not think and did not know what to do or what he was saying' as he stated in his petition. On the contrary it is plain that he was thinking clearly and reasoning logically both then and before.
He is intelligent and articulate. Referring to his examinations, one of the officers testified, 'It was just an argument, if you want to put it in that way, sort of a debate', and ' * * * he wouldn't deny it nor would he admit it, he would put it up in sort of the form of an argument, in an abstract way.' Up to the time he reached Lock Haven he had never admitted that he was guilty or had anything to do with the crime, but he seems to have been primarily concerned with whether he would be sure of avoiding trial by jury if he pleaded guilty. At his first interview with the District Attorney immediately after his arrival at Lock Haven, he at once came to the point. The District Attorney had again advised him as to the court procedure in case of a 'conviction by confession' and Mayo asked a number of questions directed to finding out whether the judge could refuse to accept the plea and send the case to trial by jury and also what the judge would do if he should enter a plea of guilty and not make a confession or any statement about the circumstances of the crime. Mayo said, 'As all you gentlemen know, it is my life I am gambling with. I don't want to come to a decision too quickly. I already have been presented with enough evidence to know the hot spot I am in. I don't like to jump too quickly and say I will do this or do that. Naturally, in my position, I am Looking for the best way out for my own welfare. I understand what a confession of any kind means. It means just one thing, that you actually committed the crime, and I don't know. It is a very serious crime, I understand.' The District Attorney then got in touch with the judge and told May that the judge would accept a plea of guilty with or without a statement from him.
The record indicates that Mayo, both before and at the time he pleaded guilty and made his confession, was self-possessed and wary. His own account is that of a logically reasoned course of conduct, faulty only in that it was based on a faulty premise, namely, the strength of the case against him. Even if he had not committed the murder his problem was still that of saving his life. It must have been evident to him that, even if not convicted or murder, he was practically certain to get a long term of imprisonment for his parole violation, his escape from jail and for the numerous burglaries with which he had been charged. There was always the possibility that if he could escape with a life sentence it might be commuted in the course of time. Though unlikely, it is not impossible that the situation as it appeared to him might lead even an innocent man to the conclusion that the best thing he could do would be to plead guilty.
However, on an application for a writ of habeas corpus this Court is limited to an inquiry as to whether his constitutional rights were violated at the trial. His guilt or innocence was for the court and jury which tried him. He was defended by competent counsel who had plenty of time to consult with him and make an appraisal of the entire situation. There was no motion for a new trial and no appeal was taken although, on the point of the voluntariness of the confession, even though not pressed, the charge was totally inadequate. Of course, I have no idea of the considerations which motivated the defense in not attempting to get a new trial, but it is not impossible that the relator preferred to let his sentence stand rather than run the risk of a second trial on which the death penalty might be imposed. I have not, however, considered the question of waiver. Although the line taken by the defense at his trial and the failure to raise the question of the voluntariness of the confession either by objection or requests for instructions suggest that the issue may have been deliberately waived, I prefer to have the case disposed of on a full consideration of all the evidence adduced by the relator upon the whole issue.
I do not think that his failure to take an appeal bars his remedy by habeas corpus
at this time, in this court.
The rule to show cause is discharged and the prayer of the petition is denied.