Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.
The following pertinent facts, succinctly stated by Mr. Chief Justice Southerland writing for the Supreme Court of Delaware, give much of the background necessary to understand the case at bar:
"At some time after midnight on October 30, 1947 Jean Igle, 23 years old, unmarried, was waiting for a bus near the corner of Fourth and Union Streets in the City of Wilmington. An automobile passed and stopped. * * * [Curran, Jones and Maguire] were in it. Curran got out, approached the girl, and asked her for a match. She had none, and he offered to escort her home. She went with him. They walked west on Fourth Street, turned north (away from the direction in which lay her home), and went to a public park which extends for two blocks, from Fourth to Sixth Streets, along a railroad right of way. They entered the park. While there Curran atacked her. Maguire and Jones had followed them. All of them, she testified, ravished her. Two witnesses living in nearby houses heard screams. A woman in another nearby house called out to them: 'You had better leave that girl alone or I will call the cops.' At about a quarter of two a telephone call from an unknown woman was received at police headquarters. She said: 'Please send the police quick, there is a girl screaming down in the Park on Ferris Street, and I think she is being raped.'
"After the woman had called out and threatened to call the police, Maguire and Curran left. Jones walked with the girl to Fourth Street, where police officers, in two police cars, found them. The gril, as soon as she was out of Jones' presence, made a complaint of rape.
"Jones was taken to the police station and the girl was sent to a hospital and examined. The medical and other testimony relating to her condition left no doubt that she had been subjected to brutal violence, and that sexual intercourse had taken place.
"Maguire and Curran were arrested shortly thereafter.
"At the police station all three men were questioned by police officers and eventually signed statements. None of these statements admitted any violence. All three statements asserted, or tended to show, that the girl had consented to intercourse.
"The jury found all the defendants guilty, and recommended them to mercy. They were sentenced to life imprisonment, the minimum term then permitted by the statute. Each defendant was represented by experienced counsel. No appeal was taken."*fn1
The investigation of the crime - at least in its early stages - was conducted by Detective John A. Rodenheiser, Detective Charles F. McCool, Sergeant John Emering, Assisted by Officers Nagle, Mazewski, Delloso, and other members of the Wilmington Bureau of Police. The statements, referred to in Mr. Chief Justice Southerland's opinion quoted above, signed by the three defendants, Curran, Jones and Maguire, were admitted in evidence at their trial in the Court of Oyer and Terminer, respectively as State's Exhibits, Nos. 10, 11 and 12. Curran's statement and that of Maguire were admitted without objection. Jones' counsel objected to the admission of his client's statement and examined Rodenheiser on voir dire, attempting to show that it had been procured by coercion. During the course of the voir dire examination*fn2 Rodenheiser was asked whether State's Exhibit No. 11 was the only signed statement procured from Jones. Rodenheiser replied that it was the only one.*fn3
Curran's statement, State's Exhibit No. 10, admitted that he had twice attempted to have intercourse with the girl but that his attempts were unsuccessful. The statement contained the sentence: "This girl was moaning. * * *" Jones' statement, State's Exhibit No. 11, admitted unsuccessful attempts to have sexual intercourse with the complaining witness. It contained the sentence: "The woman was moaning. * * *" Maguire's statement, State's Exhibit No. 12, did not admit any attempt at intercourse by him. The statement contained the two following sentences: "Jones and I stood by and watched Curran on the ground with the woman. I heard the woman moaning 'You're hurting me.'"
The three defendants testified on their own behalf. Curran swore that he did not read his statement, State's Exhibit No. 10, before he signed it. Maguire testified that he "scanned" a statement which he signed. It does not appear whether or not the document which he scanned and signed was State's Exhibit No. 12. Maguire testified that he did not even scan a statement which he claimed to have signed in the afternoon and which may or may not have been State's Exhibit No. 12. Jones gave no evidence as to reading or scanning State's Exhibit No. 11, or any other statement. Each of the defendants denied that they had ever said that the complaining witness was "moaning".
All three defendants denied the accuracy of the statements in evidence. They also insisted that there were other statements signed by them and given to the police. But Detective Rodenheiser, called as the last witness at the very end of the State's case, in rebuttal, swore that Maguire's statement, State's Exhibit No. 12, was the only signed statement given by Maguire to the police. Rodenheiser testified on rebuttal that Jones' statement, State's Exhibit No. 11, was the only signed statement*fn4 given by Jones to the police. To repeat for the sake of both clarity and emphasis, Rodenheiser swore plainly, positively and unequivocally that the statements of Jones and Maguire, State's Exhibits Nos. 11 and 12, were the only signed statements given by them to the police. The issue of the credibility of the defendants and that of the police was thus sharply before the jury.
It is now clear*fn5 that a statement other than State's Exhibit No. 11 had been signed by Jones and given to the police. This other statement had been destroyed by the police. It is clear also that the police had taken another statement from Curran before State's Exhibit No. 10 had been signed. According to Officer Nagle, Curran had refused to sign the earlier statement because his name had been spelled "Kern" in it. Nagle testified that a new statement was typed with Curran's name spelled correctly in it and that Curran signed this statement. The original statement testified to by Nagle at no time was produced in evidence. It also appears that Maguire gave the police two ...