Before GOODRICH, STALEY and HASTIE, Circuit Judges.
Petitioner, John Henry Tune, presently incarcerated under sentence of death in the New Jersey State Prison, Trenton, New Jersey, was denied a writ of habeas corpus by the United States District Court for the District of New Jersey. The necessary certificate of probable cause required by Section 2253 of Title 28 of the United States Code was issued by the district court, and Tune has appealed to this court. He contends that the district court erred in holding that none of his federal constitutional rights were violated during the process of his arrest, trial, and conviction, and raises here questions which were considered in the district court. The petitioner had previously exhausted his state remedies, including an application for certiorari which was denied by the United States Supreme Court.*fn1
William Prather was found dead in the cellar of his home in Irvington, New Jersey, during the early morning of Saturday, August 23, 1952. In the afternoon of the same day, petitioner was taken into custody, and sometime between 3 and 5 a.m. Sunday, August 24, he signed a fourteen-page, detailed statement which contained admissions as to how and when he had killed Prather. On Monday, August 25, 1952, petitioner was arraigned, and on October 7, 1952, he was indicted. On October 30, 1952, about two months and one week after petitioner's arrest and his signing of the fourteen-page statement, the trial court appointed counsel to represent him. The trial, which began on February 15, 1954, and lasted for fifteen days, resulted in a verdict of guilty of murder in the first degree with no recommendation of mercy. A judgment of conviction was entered upon the verdict, and petitioner was sentenced to death.
The questions we are asked to consider are: whether petitioner was denied trial by jury in violation of constitutional rights; whether the confession used by the state as evidence was lawfully procured; whether the refusal to allow petitioner to inspect a confession prior to trial was a denial of due process; whether the tactics of the state so impregnated the jury with the thought that the defense was unfair that the petitioner was deprived of a fair trial; and whether petitioner's right of cross examination was unconstitutionally impaired.
First, we will consider whether the state unconstitutionally deprived petitioner of trial by jury by removing the question of the voluntariness of petitioner's confession*fn2 from the jury's consideration. A very material element in the evidence which led to petitioner's conviction was his written confession. Before the confession was introduced in evidence at the trial, the question of its voluntariness was determined by the trial judge who resolved the conflicting testimony on the issue in favor of the state. Under New Jersey law, the trial judge's ruling was final for all purposes, and was not subject to scrutiny by the jury when it received the case. The jury was told that the petitioner had voluntarily made the confession and was instructed that it was to determine only whether or not the confession was true and the weight it should receive. On the petitioner's appeal to the New Jersey Supreme Court, these instructions to the jury were affirmed. State v. Tune, 1954, 17 N.J. 100, 110 A.2d 99.
Although, in a constitutional context, the ultimate determination of the issue of voluntariness is not really a question of fact, nonetheless before the determination can be made, basic facts must be accepted as true either because they are undisputed or because they result from the reasonable resolution of conflicting testimony. Lyons v. State of Oklahoma, 1944, 322 U.S. 596, 602, 603, 64 S. Ct. 1208, 88 L. Ed. 1481; Watts v. State of Indiana, 1949, 338 U.S. 49, 51-52, 69 S. Ct. 1347, 93 L. Ed. 1801. The trial judge in the case before us had to resolve conflicting testimony as to what occurred prior to and during the taking of the confession before deciding whether the confession was voluntary. It is, therefore, clear that the trial judge and not the jury decided certain questions of fact in the petitioner's trial.
The question which has been raised is whether the petitioner was constitutionally entitled to have all fact questions ultimately determined by the jury.
Although to our knowledge a situation similar to that which confronts us has never been presented to the Supreme Court of the United States, yet what that court has said makes it clear that trial by jury is not a due process requirement. In Snyder v. Commonwealth of Massachusetts, 1934, 291 U.S. 97, 105, 54 S. Ct. 330, 332, 78 L. Ed. 674, the Supreme Court said:
"The commonwealth of Massachusetts is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness unless in so doing it offends some principle of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental. Twining v. [State of] New Jersey, 211 U.S. 78, 106, 111, 112, 29 S. Ct. 14, 53 L. Ed. 97; Rogers v. Peck, 199 U.S. 425, 434, 26 S. Ct. 87, 50 L. Ed. 256; Maxwell v. Dow, 176 U.S. 581, 604, 20 S. Ct. 494, 44 L. Ed. 597; Hurtado v. California, 110 U.S. 516, 4 S. Ct. 111, 292, 28 L. Ed. 232; Frank v. Mangum, 237 U.S. 309, 326, 35 S. Ct. 582, 59 L. Ed. 969; Powell v. [State of] Alabama, 287 U.S. 45, 67, 53 S. Ct. 55, 77 L. Ed. 158. Its procedure does not run afoul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar. Consistently with that amendment, trial by jury may be abolished. Walker v. Sauvinet, 92 U.S. 90, 23 L. Ed. 678, Maxwell v. Dow, supra; New York Central R. Co. v. White, 243 U.S. 188, 208, 37 S. Ct. 247, 61 L. Ed. 667; Wagner Electric Mfg. Co. v. Lyndon, 262 U.S. 226, 232, 43 S. Ct. 589, 67 L. Ed. 961. Indictments by a grand jury may give way to informations by a public officer. Hurtado v. [People of State of] California, supra; Gaines v. [State of] Washington, 277 U.S. 81, 86, 48 S. Ct. 468, 72 L. Ed. 793. The privilege against self-incrimination may be withdrawn and the accused put upon the stand as a witness for the state. Twining v. [State of] New Jersey, supra. What may not be taken away is notice of the charge and an adequate opportunity to be heard in defense of it. Twining v. [State of] New Jersey, supra; Powell v. [State of] Alabama, supra, pages 68, 71 of 287 U.S. 45, 53 S. Ct. 55; Holmes v. Conway, 241 U.S. 624, 36 S. Ct. 681, 60 L. Ed. 1211. Cf. Blackmer v. United States, 284 U.S. 421, 440, 52 S. Ct. 252, 76 L. Ed. 375."
In the light of the above, we cannot see how New Jersey has "run afoul" of the Fourteenth Amendment by permitting the trial judge to conclusively determine the voluntariness issue. See also Stein v. People of State of New York, 1953, 346 U.S. 156, 179, 73 S. Ct. 1077, 97 L. Ed. 1522.
Petitioner next contends that the confession was not voluntarily given and asks this court to so hold. We may properly upset a determination of voluntariness by a trial judge or jury only if the facts which are unquestioned in the state's version of the case persuade us that the confession was not voluntary. See Watts v. State of Indiana, 338 U.S. at page 52, 69 S. Ct. 1347, 93 L. Ed. 1801.
The facts in this case, which a reading of the transcript indicates were not questioned by either side, are:
William Prather was found dead in the cellar of his home in Irvington, New Jersey, during the early morning of Saturday, August 23, 1952. When found, Prather was lying on the floor nude from the waist down. In the afternoon of the same day, petitioner was picked up without a warrant and taken to the Newark Police Headquarters*fn3 and told that he was wanted for questioning about an auto accident. At the Newark station, petitioner stripped from the waist up, removing his coat, shirt, and belt. He was questioned for a short while, fingerprinted, and put into line-ups for identification by witnesses. Petitioner was at the Newark station until about eight o'clock that evening. Petitioner's wife, who was five months pregnant, was also at the Newark station for several hours when petitioner was there. From the Newark station, petitioner was taken to the cellar of the Prather home. In the cellar, certain pictures were taken of petitioner in various poses. In some of the pictures a police officer took the part of the deceased Prather. Petitioner was taken from the Prather home to the Irvington police headquarters, arriving there about 10 p.m. Sometime around midnight a doctor came in to see petitioner and asked certain questions and requested petitioner to perform certain coordination and sobriety tests. After the doctor left, petitioner was questioned for a period of from three to four hours. As he answered questions, a police officer was writing something down. After the questioning, petitioner affixed his signature to the ...