question him and at 4:30 a.m., without being given an opportunity to speak to his family or attorney, he gave the confession which is in controversy here. He stated that he did not wish to sign but at the last moment someone in the background stated "you will sign" whereupon he signed.
We are unable to determine that the petitioner was drunk or under the influence of drugs at the time the confession was given. We accept the testimony of E. Buist Wells, M.D., who testified that the effects of the alcohol and drugs would long since have worn off. We do, however, consider as serious the circumstances that the police refused to allow him to call his parents so as to obtain an attorney for him, the fact that he was kept up until the small hours of the morning and the fact that the district attorney, a leading lawyer of Erie, Pennsylvania, once a common pleas judge, was not called to testify as to the circumstances of taking this confession at 4:30 a.m. without giving petitioner an opportunity to consult with counsel.
Admittedly, this confession was extracted from defendant prior to Escobedo and Miranda, supra. However, as noted in Johnson v. New Jersey, supra, the safeguards may be invoked as part of an involuntariness claim. We have given little credence to the testimony of the psychiatrists on either side. Both of them described petitioner as not being a mentally incompetent person entitled to the defense of insanity. They have, however, pictured him as being a compliant person, eager to please, who would readily be induced to sign a confession under the circumstances present. See Davis v. North Carolina, 384 U.S. 737, 86 S. Ct. 1761, 16 L. Ed. 2d 895 (1966) where failure to give adequate Miranda warnings was held to be a significant factor to consider in cases tried prior to Escobedo and Miranda.
Under the "totality of the circumstances", we find that he was not under the influence of alcohol or drugs at the time he gave this confession but, considering the circumstances of his being kept up until 4:30 a.m. from 8:30 a.m. the previous day without food or refreshment and being prohibited by the police from calling his family or being able to secure counsel, that under all the circumstances the confession must be considered as involuntary and we so determine.
This, however, is not the end of the matter. Petitioner at his trial was represented by Joseph V. Agresti and William J. Schaaf, Esquires, two leading trial lawyers in Erie, Pennsylvania and known to the court as being extremely competent and diligent in cases of this kind. Petitioner contends that they were helpless and unable to keep out the confession rendered under the circumstances above set forth.
This is not the whole story, however, under which this confession came into evidence. These experienced trial counsel wanted this confession in for the purpose of confirming their client's exculpatory story that the shooting was accidental. Both counsel agreed when testifying in this case that they wanted this confession in because of the statements it contained which favored their cause.
We thus hold that, regardless of whether the statement was voluntary or involuntary, having been relied upon by the defense for trial strategy purposes, defendant cannot now upset his conviction on the grounds that the statement was involuntary.
As to permitting the entry of an otherwise involuntary confession as a matter of trial strategy in the hope of securing benefits therefrom, see Henry v. Mississippi, 379 U.S. 443, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965) and discussion of the same in United States ex rel. McCloud v. Rundle, 402 F.2d 853 (3d Cir. 1968). The court said at 379 U.S. 443 at 450, 85 S. Ct. 564 at 569, 13 L. Ed. 2d 408:
"The evidence suggests reasons for a strategic move * * *. If either reason motivated the action of petitioner's counsel, and their plans backfired, counsel's deliberate choice of strategy would amount to a waiver binding on petitioner and would preclude him from a decision on the merits of his federal claim either in the state courts or here. * * *"
See also United States ex rel. Cornitcher v. Rundle, 285 F. Supp. 625 (E.D. Pa. 1968); United States ex rel. Henderson v. Brierley, 300 F. Supp. 638 (E.D. Pa. 1969) where the court found there was inaction on the part of counsel as the result of trial strategy.
It should be noted that petitioner in the hearing on this case before this court admitted that the contents of the confession were true. He clearly took the position as he did at the trial and as set forth in the confession that the shooting was accidental. In addition there was an overwhelming amount of other evidence demonstrating his guilt and therefore the harmless error rule of Chapman v. California should apply. 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
This is not a situation such as arose in Collins v. Brierley, D.C., 336 F. Supp. 1024 (now on appeal) where petitioner at a murder trial resisted the admission of a confession which was later held to be erroneously received and as a result of the erroneous reception, petitioner felt compelled to take the witness stand in which case this court held that Harrison v. United States, 392 U.S. 219, 88 S. Ct. 2008, 20 L. Ed. 2d 1047, mandated a new trial.
II. Instructions as to the burden of proof in voluntary manslaughter.
No question has been raised as to the original instructions to the jury with respect to the elements of murder. However, after the jury had been deliberating for some time, they returned for additional instructions stating the question:
"Your Honor, am I correct in assuming that if a jury cannot agree as to the degree of the crime, they are to compromise for the lesser degree?"