BULLOCK v. SOUTH CAROLINA

Print this transcript Transcript: 

Argument of Matthew J. Perry

Chief Justice Earl Warren: Number 78, Quincy Bullock, Petitioner, versus South Carolina.

Mr. Perry.

Mr. Matthew J. Perry: Mr. Chief Justice, may it please the Court.

This case comes by writ of certiorari to the Supreme Court of the State of South Carolina.

On August the 3rd, 1958 in Dillon County, South Carolina, there occurred one of those crimes which generally engenders a great deal of passion in the local community.

A lady was killed out in the cemetery of Dillon County, South Carolina.

She and a male companion were in the cemetery and the evidence presented at the trial was to the effect that someone came up behind the car which they were sitting and fired a shot or shots into the car.

The next day, the body of this lady was found to some distant from the automobile which was parked in the cemetery.

Evidence also showed that the companion of the deceased was injured by gunshot wound.

Justice Charles E. Whittaker: May I ask?

Did they find the automobiles still in the cemetery the next day?

Mr. Matthew J. Perry: Yes, sir, they did.

Justice Charles E. Whittaker: You stated that she was shot in the cemetery.

Is that known?

Mr. Matthew J. Perry: That was the evidence presented at the trial, sir.

And there was other evidence which I think forms a part of the confession which has been an issue in this proceeding.

Justice Charles E. Whittaker: But there was evidence that the lady was shot in the cemetery.

Mr. Matthew J. Perry: Yes, sir.

Yes, sir.

On August the 7th, 1958, the petitioner, Quincy Bullock was arrested at -- at his home.

Bullock was arrested and taken to the Dillon County jail and was confined overnight in the Dillon County jail.

He denied commission of the offense on the day of his arrest.

Justice John M. Harlan: How old was the defendant?

Mr. Matthew J. Perry: Bullock was 46 years old at that time, sir.

On the following day, the sheriff and other officers of Dillon County, South Carolina went into the new jail of Dillon County and transferred Bullock over to the old jail which houses no prisoners.

The record does not reveal any reason for this particular action on the part of the law enforcement authorities other than for questioning.

It is important to note that the old jail of Dillon County houses no prisoners.

The questioning continued for more than an hour.

And Bullock later contended that he was brutally beaten by the police officers while he was in the old jail.

In fact, his contention was that a sheet was placed over his head and that he was brutally beaten and kicked on his chin.

After questioning in the old jail of Dillon County, Bullock was removed over to the judges' chambers, which adjourns the courtroom in the courthouse.

The sheriff of Dillon County testified that in removing Bullock from the old jail over to the new jail, he was doing so far Bullock's protection and that a mob of some 200 or 300 persons had gathered around the old jail.

Justice Charles E. Whittaker: Is there any evidence as to whether or not Bullock knew that?

Mr. Matthew J. Perry: No, sir, Mr. Justice Whittaker.

The evidence in fact, the testimony of Bullock appears to be that he did not see the 200 or 300 people there although it is difficult to understand why he didn't see them.

The sheriff and the other officers saw them and apparently removed Bullock for his own protection.

That appears to be a conflict in the testimony of the sheriff and of Quincy Bullock himself.

We think of course that the presence of -- of such a large number of persons around to the extent that the sheriff himself was concerned for the welfare of Bullock perhaps had its influence in the totality of the situation.

While in the judge's chambers adjoining the courtroom, Bullock saw his sister-in-law.

Now, the sister-in-law, though a member of his family was not there for the purpose of visiting Bullock or giving him comfort, but was brought in by the law enforcement officers for the purpose of reputing Bullock's assertion that he did not have a gun.

And so, for all practical purposes, we submit that -- that her visit with him in the judge's chambers adjoining the courtroom was on -- in other than -- than friendly or social purposes.

Justice William J. Brennan: Was the judge present (Inaudible)?

Mr. Matthew J. Perry: No, sir, he was not.

Thereafter, after questioning for an additional hour or two, Bullock was taken back into the county jail where he had been incarcerated overnight.

And there, he saw and conversed with his wife, Mattie Bullock.Mattie Bullock was also under arrest.

In fact, in investigation of the same crime and so we again note that the fact that he saw Mattie Bullock, his wife, does not interfere with our contention that Bullock was in fact being held incommunicado.

After Mattie Bullock saw the defendant, then her testimony given at the trial was to the effect that when she saw her husband, his face was swollen to the point that his eye was almost closed and that he could not have walked.

Now, this testimony of Mattie Bullock is unchallenged in the record.

It is recognized that the issue of -- of brutality generally is sharply contested by the sheriff and the law enforcement officers of Dillon County.

Justice Felix Frankfurter: And all of that testimony is taken out of the hearing of the jury, was it?

Mr. Matthew J. Perry: The testimony of the Sheriff of Dillon County was taken out of the hearing of the jury, Mr. Justice Frankfurter but otherwise, the testimony of Mattie Bullock was taken in the presence of the jury as a witness for the defendant.

Justice Felix Frankfurter: Could you at least -- putting up to state what the South Carolina rule is that to the -- the confidence of -- when a confession is offered, what procedure is followed to establish the admissibility of the statute?

Mr. Matthew J. Perry: The procedure that South Carolina follows sir and which is outlined in the opinion written by Mr. Justice Moss that when the issue of the voluntariness of the confession that brought into issue that the judge shall immediately exclude the jury and conduct a separate or private examination of the witnesses having any knowledge about the issue of coercion.

And that is what happened here.

The judge -- the presiding judge did excuse the jury and the sheriff of Dillon County was placed on the witness stand and was examined both by Solicitor Kilgo and cross-examined by Mr. Ritz (ph).

Justice Felix Frankfurter: But weren't all witness is relevant to the admissibility hearing chamber?

Mr. Matthew J. Perry: No, sir and I submit that this was not in chambers but in open court.

Justice Felix Frankfurter: Well, I don't care if I (Voice Overlap) --

Mr. Matthew J. Perry: Yes, sir.

Justice Felix Frankfurter: Outside the jury (Voice Overlap) --

Mr. Matthew J. Perry: Yes, sir.

Justice Felix Frankfurter: Wasn't all the testimony bearing on admissibility taking out of the hearing of the jury?

Mr. Matthew J. Perry: No, sir, it was not.

Justice Felix Frankfurter: Well then, the rule must be that after the judge rules his permissibility issue is retried before the jury?

Mr. Matthew J. Perry: Yes, sir.

That is correct.

Justice William J. Brennan: As a matter -- as a matter of option, was the defendant -- whether he'll testify as to the (Inaudible)?

Mr. Matthew J. Perry: I think it is sir.

Justice William J. Brennan: Exercise until not testify.

Mr. Matthew J. Perry: That is correct.

Justice William J. Brennan: What is the test to determine whether or not the judge shall hold (Inaudible)?

Mr. Matthew J. Perry: It's -- the test is in the judge's own mind as to whether or not the evidence presented on the issue of coercion convinces him that the confession is voluntary, then the issue as to whether or not it was voluntary is submitted to the jury and with appropriate instructions which the Court did in this case.

He instructed the jury that if they should find that the confession was involuntary, that they should disregard it.

He did this both before the testimony was -- was pursued concerning the confession and later in his charge to the jury.

Justice Hugo L. Black: Was the question of brutality contested?

Mr. Matthew J. Perry: Yes, sir, it was.

The question of brutality was sharply contested but we submit that the testimony of Bullock's wife, Mattie Bullock, is not in -- not contested, that when she saw him on Friday, August the 8th, he -- his -- his face was swollen to the point that his eye was almost closed and he couldn't have walked.

Now, there was reply evidence --

Justice Charles E. Whittaker: (Voice Overlap) -- couldn't half walk --

Mr. Matthew J. Perry: Yes, sir.

Justice Charles E. Whittaker: -- couldn't half --

Mr. Matthew J. Perry: That's -- that's a quote from the record, sir.

Justice John M. Harlan: That was before the jury, was it that --

Mr. Matthew J. Perry: That is correct, sir.

Justice Tom C. Clark: Was there (Inaudible) doctor testified?

Mr. Matthew J. Perry: Yes, sir.

A Dr. Branford testified that on Monday, August the 11th, he examined the petitioner and that he saw no -- no evidence of bruise.

Justice Tom C. Clark: That's three days later?

Mr. Matthew J. Perry: That's three days later, sir.

Justice Felix Frankfurter: To be able to follow your argument, I think it's more understanding if you tell me whether your claim is that the judge erroneously charged the jury as to the standards determining admissibility i.e. voluntariness in defense this Court has, you could find it in decisions or whether the complaint is that even according to a right charged on the evidence in this case, legally no such conclusion could have constitutionally been drawn.

Mr. Matthew J. Perry: That is the substance of our contention Mr. Justice Frankfurter that --

Justice Felix Frankfurter: Did we not complaint that the judge laid down a wrong standard or what himself guided by wrong standard?

Mr. Matthew J. Perry: We do not, sir.

Justice William J. Brennan: Well, Mr. Perry, we suggest that Mattie Bullock's testimony stands unchallenged but what I've gathered from the sheriff and the other law enforcement officers testified that there had been no beating.

Mr. Matthew J. Perry: Yes, sir.

That is correct Mr. Justice.

Justice William J. Brennan: Well, that extent I gathered that the challenge is this, it was Mattie Bullock's description of him as having --

Mr. Matthew J. Perry: There is, taking the testimony of the sheriff and the other officers that Bullock was not beaten.

That of course would put an issue of the contention of Mattie Bullock that that's when she saw and his face was swollen but we do submit that -- that that particular statement of Mattie Bullock is unchallenged.

Justice William J. Brennan: He did not testify I gather at the hearing out of the presently pledge of the jury?

Mr. Matthew J. Perry: No, sir, she did not.

Justice Potter Stewart: No one testified at all for the defense, is that it?

Mr. Matthew J. Perry: No, sir.

Only sheriff -- the sheriff of Dillon County testified.

Now, thereafter, Bullock was taken over to his home where the -- where the gun was retrieved.

The evidence was that Bullock had the gun placed in a wall in his home.

And later, as he was testifying in the -- in the trial of course, he seem to place great deal of stress on the fact that he was simply attempting to protect his gun of being discovered by the law enforcement officers because he was afraid that would be taken from him.

Be that as it may, the gun was retrieved from inside a wall near the window in his bedroom.

Here again, Mattie Bullock testified that she went over to the home with the officers and with her husband and that it was necessary that he'd be given some assistance to go from the sheriff's car into the home that still he couldn't have walked, that he was obviously bruised.

Now, the testimony of Mattie Bullock, I again submit of course is unchallenged except for the general denial of the law enforcement officers that -- that no physical brutality was inflicted upon Bullock.

After the gun was retrieved, Bullock was then taken in an automobile out on the outskirts of town to a motel known as Faith Motel.

Now, the -- the testimony is that they stopped there.

It was -- it was very brief but we do submit that this is -- all falls within the chain of moving Bullock around always in the presence of a number of law enforcement officers.

Justice William J. Brennan: What day was this, Mr. Perry?

Mr. Matthew J. Perry: This was on Friday, August the 8th, the afternoon of the 8th after the gun was retrieved.

Justice Potter Stewart: He was not taken into the motel?

Mr. Matthew J. Perry: The record is silent as to whether he was taken in the motel.

As I understand the contention of the State, he was not taken in the motel but was left in the car on the outside of --

Justice Potter Stewart: He stopped there to pick up another officer?

Mr. Matthew J. Perry: Apparently, that is the contention of the State, sir.

They had --

Justice Tom C. Clark: What county?

Mr. Matthew J. Perry: That's still in Dillon County sir.

Mr. Justice Clark, after they did leave the Faith Motel, the evidence is that Bullock was kept in the car in which he was riding and then taken over into adjoining Marion County.

Justice Tom C. Clark: (Inaudible)

Mr. Matthew J. Perry: I believe that this officer that they picked was an officer of the South Carolina Law Enforcement Division.

I do not recall at this time but it occurs to me that he might have been the ballistics expert.

Justice William J. Brennan: Just like state police in the --

Mr. Matthew J. Perry: Yes, sir.

Yes, sir.

Thereafter, Bullock was taken over into adjoining Marion County and was surrounded by a number of officers including the sheriff of Dillon County, several of his deputies and some men from the South Carolina Law Enforcement Division.

And the testimony of the sheriff was that Bullock made the first admission while sitting in the car on the outside of the Marion County jail.

The testimony of the sheriff was that Bullock said to him, "If you say I've done it, I've done it."

That was the form of the admission.

This constituted the form of the admission and thereafter, Bullock was placed in the Marion County jail, well this being Friday night, August the 8th.

And he was thereafter held in the Marion County jail until Monday, August the 11th.

Justice Charles E. Whittaker: (Inaudible) your -- your argument, this is why I asked you, whether that testimony is submitted before the jury.

Mr. Matthew J. Perry: It is my understanding, my recollection that it was, sir.

That the -- that the sheriff testified in his direct examination after the judge had already charged that if the jury should find the confession involuntary that they should not consider it.

This was included in the sheriff's direct examination.

Justice John M. Harlan: Do you mean as I -- you said I have done it, I have done it.

That's --

Mr. Matthew J. Perry: Yes, sir.

If you say I have done it, I have done it.

Now on Monday, August the 11th, the sheriff of Dillon County along with some of his other officers went to the Dillon County jail -- to the Marion County jail, I beg your pardon, and brought Bullock back to the Dillon County jail.

Chief Justice Earl Warren: How far apart from those two jails?

Mr. Matthew J. Perry: They are two small counties which adjoined each other over in the eastern section of South Carolina near the Atlantic Ocean.

There's a distance of less than 30 miles as I recall.

I maybe slightly old on that but they are reasonably closer.

Chief Justice Earl Warren: Yes.

Mr. Matthew J. Perry: On the way back to the Dillon County jail, a stop was made in the cemetery on the outskirts of Dillon in which this crime is alleged to have been committed.

And Bullock later was called upon to reconstruct the crime at that -- at that location.

Bullock in his testimony stated that the officers told him where to point and he simply pointed out anywhere, "So they wouldn't get a hold of me no more."

That was the -- the reason which Bullock himself assigned to his having pointed in any direction in the cemetery.

Of course that is she was also in conflict, the sheriff testifying that Bullock pointed exactly to the spot where the crime was allegedly committed and where the body was found.

But Bullock in his -- in his testimony stated half crying in the Court that he simply pointed out anywhere so they "wouldn't get a hold of me no more."

Bullock was then taken to the Dillon County jail and a statement, a written statement prepared for his signature.

The evidence was -- the testimony of the sheriff was that -- that Bullock would make a statement and that the clerk who -- who was preparing the statement would -- would translate what Bullock have said and write it down into a statement on the paper and that the -- the written confession which was somewhat lengthy was the product of this kind of exchange between Bullock and the officer who was preparing a statement, that Bullock would make a statement and the officer would translate it and write it down in his own words.

After some ado, the statement was completed and Bullock signed the statement.

Now, a contention was made in the court below that Bullock did not receive a copy of the statement in accordance with -- with South Carolina law in this interpreted subject but the Supreme Court of South Carolina resolved that against our contentions.

And of course, we make no -- no issue on it here.

But, there was some showing made in the record on -- on the part of counsel who conducted the trial of the case that the -- the exhibit was removed from the typewriter and apparently thereafter, reinserted for the purpose of adding the words, "I have received a copy of this confession."

And of course, South Carolina statute requires that -- that such a statement be included on any confession before it can be used in evidence against the accused.

About an hour later, another statement was prepared.

This one of course purporting to be a written reconstruction of the crime and that one also was signed by Bullock.

And apparently, reinserted also for the purpose of adding the words, "I have received a copy of this statement."

Justice John M. Harlan: Were there differences in substance between the two statements?

Mr. Matthew J. Perry: Yes, sir.

There was differences -- there were differences in substance.

The first is purporting to -- to be the confession in narrative form.

And the second, a collaborating statement made for the purpose of reconstructing.

Justice John M. Harlan: Oh what I meant was, was the account given of the crime the same in the first statement, is the same (Voice Overlap) --

Mr. Matthew J. Perry: The substantial are the same, yes, sir.

Yes, sir.

Justice John M. Harlan: I had -- I have some recollection.

I maybe wrong but the first statement says there was this woman was shot outside of the automobile, apart from the automobile and the second statement says she was shot in the automobile.

Am I wrong?

Mr. Matthew J. Perry: As I recall Mr. Justice Harlan, the contention of the -- the State was that the deceased had been shot more than once.

Justice John M. Harlan: More than once.

Mr. Matthew J. Perry: Once while in the car and once later at the point where her body was found or at some point prior.

Justice John M. Harlan: If you make no point of any inconsistency in the account between -- as to how the crime occurred between the two statements?

Mr. Matthew J. Perry: I do not, sir.

It's our contention principally that the -- the method of extracting the confession validated the -- the right to due process of law of the petitioner and hence should not have been considered.

The petitioner was thereafter confined on the motion of the State to the South Carolina Hospital for a psychiatric examination for a period of 30 days.

And on the same day that he was committed being August the 26th as I recall, two lawyers in the City of Dillon were notified by the presiding circuit judge of that circuit that they were appointed to defend the accused.

Justice William J. Brennan: Mr. Perry, is this an examination or a routine sort of business under your practice or has to be some reason which accounts for the State's motion that having committed for a psychiatric?

Mr. Matthew J. Perry: It is -- it is wildly used in South Carolina by the State as an effort, I believe, to expedite the handling of criminal prosecutions.

Justice Hugo L. Black: Well, is that -- is that that you have to answer this largely routine then, it doesn't have to be an indication that the accused maybe under some mental difficulty before it's --

Mr. Matthew J. Perry: It's my understanding that it's largely routine.

Although, it is also used where there is evidence of insanity.

Justice William J. Brennan: What's the -- what's the --

Mr. Matthew J. Perry: Clearly, the --

Justice William J. Brennan: -- base here?

Mr. Matthew J. Perry: It would hesitate to comment on that sir unless the Court requires --

Justice William J. Brennan: Nothing in the record which tell us.

Mr. Matthew J. Perry: There is nothing in the record which tells us.

I -- I suspect that the real reasoning is that the crime was committed on August 3rd.

And the next term of Court would commence on about October 16th or thereabout.

And because of the lapse of time between August the 3rd and October, it was possibly felt that the -- since the accused had a right to be committed if -- if he wanted to that possibly the State should go ahead and get the period of examination out of the way so that when the October term of court came, that there would be no purpose of delaying the prosecution by reason of such a request.

I hastened to say that that is merely -- merely speculation on my part and I certainly do not attribute to the solicitor any -- any scheme of course to deprive the accused of his rights in connection with any plea of insanity or so forth.

The court-appointed counsel did not have an opportunity to examine the accused until a few days before his trial.

And did not proceed of his defense until sometime thereafter by reason of their statement that of course he did not apparently trust them in the beginning.

I believe there was some contention that he apparently wished to obtain attorneys in another city and after ascertaining that those attorneys were not available that he then gave his statement to his court-appointed counsel.

The counsels who were appointed conducted the defense of the defendant vigorously.

They raised to the pertinent questions which were necessary to protect him and defended him as I say rather vigorously.

The confessions were received an evidence and the Court -- the jury found the defendant guilty and under the -- the requirement of South Carolina where a defendant is found guilty of the murder case without recommendation to the mercy of the Court, the death -- that death penalty is mandatory.

The Court accordingly sentenced the -- the defendant to death in the electric chair.

Thereafter, the present counsel in the case were substituted and the appeal taken to the Supreme Court of South Carolina.

In the Supreme Court of South Carolina, it was contented by assignment of error that the -- the defendant was deprived of due process of law by reason of the -- the receiving evidence of the confessions and the inculpatory statements made on Friday, August the 8th, 1958.

Now, these and other contentions of the defendant were resolved against the -- the defendant and the Court affirmed that the judgment of the Court of generalization to Dillon County.

Thereupon after a rehearing was denied, this Court granted the petition for certiorari to the Supreme Court of South Carolina.

We respectfully submit that the -- the -- taking the uncontroverted portion of the record in this case and it is certainly recognized that in a case of this nature.

This Court will examine the entire record.

And even though the -- the contested issues which lead to the making of the confession are said to come here conclusively resolved by the adjudication of the court below.

And nevertheless, we recognize that this Court does make its own independent examination of the records.

It is submitted that the uncontradicted portions of the record in this case presents a series of -- of things, which we think bear heavily upon the issue of coercion.

Justice John M. Harlan: Could you list those uncontested factors as you call them, I mean would you --

Mr. Matthew J. Perry: Very good, sir.

Justice John M. Harlan: -- categorize them for us and you've mentioned some of them and I just want to see what the list was.

Mr. Matthew J. Perry: Alright, sir.

We contend first of all, that the petition of being of a different race from the arresting officers was one of the issues which might present some circumstance, which the Court might consider.

Justice Felix Frankfurter: Do you mean by that that in every case in which the accused or the convicted person is a colored person that this Court must take that as having some presumptive weight of coercive power?

Mr. Matthew J. Perry: Mr. Justice Frankfurter, I certainly would not --

Justice Felix Frankfurter: I shouldn't think you would.

Mr. Matthew J. Perry: I -- I would not go that far, sir.

I -- I simply urge that in this case, the -- the racial difference of the accused from his arresting officers taken in connection with the other factors, which I shall attempt to cover might have some way.

Justice Felix Frankfurter: Well, I don't need to --

Mr. Matthew J. Perry: Yes, sir.

Justice Felix Frankfurter: -- be troubled by suggestion that in the context of this case, the circumstance of this or in the context of any particular case.

But it did sound as though you made a generalization as presumptively.

Mr. Matthew J. Perry: I certainly did not intend -- did not intend to.

Justice Felix Frankfurter: You know, you might -- if --

Mr. Matthew J. Perry: Yes, sir.

Justice Felix Frankfurter: -- if he had to do that, in this case, we'd have to take it in the case of a -- of a Mexicans, Filipinos, Jews in an Irish community, Irish people in the Jewish district.

I mean, where would we get into continuing which we are trying consistently with facts, with the realities of life, not to emphasize all differences but it's rather more and more contractions?

Mr. Matthew J. Perry: I think, sir -- as I say, I certainly did not intend to -- to generalize it to the extent of having this Court to consider it as one of the overriding factors.

Justice Felix Frankfurter: Not even overriding, but presumptively.

Mr. Matthew J. Perry: Yes, sir.

Justice Felix Frankfurter: It maybe presumptive in a particular situation.

A record may show a consistent conduct.

I hope they're not many.

Mr. Matthew J. Perry: Yes, sir.

Justice Felix Frankfurter: And not one who shut the guy to this fact, but I don't like to just hold to see more than there is there.

Mr. Matthew J. Perry: I understand, sir.

We -- we merely point out that in -- in a situation where a lady who is apparently very well-known in the southern community is brutally killed, the -- the race of the accused may possibly take on some added meaning and particularly as he is surrounded by -- surrounded by -- by officers of the opposite race who --

Justice Felix Frankfurter: You've -- you've already added some ingredients.

Mr. Matthew J. Perry: Yes, sir.

Justice Felix Frankfurter: Making out of generality.

Mr. Matthew J. Perry: Yes, sir.

Next, it is shown that the petitioner is illiterate.

This Court, of course, has stated, I believe, on many occasions that the educational level of the accused is relevant on the issue of whether or not a confession is coerced.

Justice Potter Stewart: Do you mean illiterate in the technical sense that he couldn't read or write?

Mr. Matthew J. Perry: He could not read, sir, and the record shows that he could write only his name.

And he did in fact write his name on the exhibits in this case.

It is submitted that the petitioner that was held incommunicado from the time of his arrest on August 7th through August the 11th at which time he confessed.

Now, we recognize the -- the short visits with his sister-in-law who was brought in for the purpose of contesting the issue of whether or not he owned a gun.

And also, the fact that he saw wife briefly, she being also under arrest.

Justice Felix Frankfurter: Was the visit from the wife or by the wife curtailed by the authority?

Mr. Matthew J. Perry: The record does not show that it was curtailed, sir.

However, in the regular course of -- of police work after the prisoner was returned to his cell for a few minutes and during which time he had a short visit with his wife.

Justice Felix Frankfurter: (Inaudible) was the --

Mr. Matthew J. Perry: Yes, sir.

Justice Felix Frankfurter: -- wife understand she wasn't allowed to and that he wants his wife to stay and the question denied.

Mr. Matthew J. Perry: The record does not -- does not bear us out on that particular one, sir.

Justice Felix Frankfurter: What about talk with a lawyer?

Mr. Matthew J. Perry: That issue was not -- was not answered, sir.

Justice Felix Frankfurter: But he -- he did have a lawyer?

Mr. Matthew J. Perry: Oh, yes, sir.

Justice Felix Frankfurter: (Voice Overlap)

Mr. Matthew J. Perry: I beg your pardon.

Only after the Court appointed counsel.

Justice Felix Frankfurter: Yes.

Mr. Matthew J. Perry: Yes, sir.

Justice Felix Frankfurter: But there afterwards, access denied his counsel to see him?

Or the request by him to see his counsel denied?

Mr. Matthew J. Perry: The -- the counsel, the only counsel which Bullock had was appointed by the Court on August the 26th, some several weeks after the commission of this offense.

Justice Felix Frankfurter: Yes, but during this, was there a counsel during any of the period, during which you claim he was held incommunicado?

Mr. Matthew J. Perry: No, sir, there was not.

Justice Felix Frankfurter: So that during that period, he was -- there was not?

Mr. Matthew J. Perry: There was not.

Justice Felix Frankfurter: And during that period, did he ask for any counsel?

Mr. Matthew J. Perry: There --

Justice Felix Frankfurter: Or any -- let me generalize, Mr. Perry.

Mr. Matthew J. Perry: Yes, sir.

Justice Felix Frankfurter: Was there cany request by him to see anybody, family, friend, wife or lawyer during what you call a period of incommunicado denied?

Mr. Matthew J. Perry: The record, Your Honor, does not show that the prisoner requested to see anyone and that that request was reviewed.

Justice Felix Frankfurter: Does the record show that he was held more incommunicado than other persons held for murder?

Mr. Matthew J. Perry: I of course, would respectfully urge that here, we had a hideous crime which was committed and the authorities were trying very -- very strenuously to solve that -- that crime.

The first inculpatory statement having been made on Friday, August the 8th, the prisoner was transferred to adjoining Marion County and we -- we submit that -- that since the prisoner was said to have made his first inculpatory statement.

At that time, it was transferred to an adjoining county.

There is certainly a presumption that he was being held incommunicado although I hasten to say that that does not appear in the record any request that he made to confirm with counsel or for instance in that request denied.

Justice Felix Frankfurter: Since, we have to seek out in each case, yes it is (Voice Overlap), but we have to ascertain that this either fact in the context of a circumstance of each cases, it's important to ask these questions, which if I may say so you've given very candid answer.

Mr. Matthew J. Perry: Thank you kind sir.

I might say on that same point, sir that the petitioner was not taken immediately to a magistrate and a warrant securing for his arrest.

Although during that period from August the 7th through August the 11th, the petitioner was incarcerated in close proximity of a magistrate.

Justice Felix Frankfurter: Well, when did the -- when according to record, varying from -- from the record, when did the police for the whole -- using the word prosecution its comprehensive sense, when was there -- the assumption or the belief or the decision by the authority that Bullock should, the guilty person, the person to be charged?

Mr. Matthew J. Perry: I think that on the evening of Friday the 8th, 1958, the authorities had formed an opinion concerning the complicity of this petitioner, concerning the commission of the offense.

And as of that moment, if not prior to that, I believe they were under a duty to -- to take him before a magistrate and secure a warrant.

Now, may I --

Justice John M. Harlan: If you have a statute that South Carolina requires (Voice Overlap) --

Mr. Matthew J. Perry: Yes, sir.

Justice Felix Frankfurter: What's the phrase, crumb or immediate, or what is the word?

Mr. Matthew J. Perry: Without unnecessary delay.

As I seem to recall, sir, it's cited in our brief at page 6.

Justice Felix Frankfurter: Were there other people involved in the minds of the authorities as having complicity in the offense?

Mr. Matthew J. Perry: The record does not show that that was the case, sir.

However, the offense having been committed on August the 3rd, and this petitioner having been arrested on August the 7th, there was a lapse of a period of about four days.

Justice Felix Frankfurter: And does the record show even -- no one I think of -- well, I feel very strongly for the enforcement of procedural safeguard in criminal cases --

Mr. Matthew J. Perry: Yes, sir.

Justice Felix Frankfurter: -- and I think you explained it.

But I think we must also take into account the responsibility of the police in --

Mr. Matthew J. Perry: Yes, sir.

Justice Felix Frankfurter: -- trying to solve a mystery, a commission of a crime particularly where it creates the very difficulty of feeling and where --

Mr. Matthew J. Perry: Yes, sir.

Justice Felix Frankfurter: -- I don't know what the newspapers said in this case, but they usually are not (Inaudible)

Mr. Matthew J. Perry: Yes, sir.

That is correct.

The statute of South Carolina Section 43 and Section 222 requires that where an arrest is made by a deputy sheriff without a warrant that the person arrested shall be carried before a magistrate and a warrant of arrest procured and disposed off as the magistrate shall direct.

So, it doesn't say -- it doesn't use the phrase without unnecessary delay, but it did say he shall be carried.

And I submit that of course --

Justice William J. Brennan: It would be the word forthwith.

Justice Hugo L. Black: Use the word forthwith?

Mr. Matthew J. Perry: Yes, sir.

It does say forthwith.

Justice William J. Brennan: But apparently --

Mr. Matthew J. Perry: Yes, sir, he does.

Justice William J. Brennan: -- that -- that was strange.

This applies only to the deputy sheriff and this arresting officer was the sheriff --

Mr. Matthew J. Perry: That is correct, sir.

Justice William J. Brennan: -- and that is why it doesn't apply to him?

Mr. Matthew J. Perry: Apparently, this petitioner was arrested by the sheriff of Dillon County.

Justice William J. Brennan: You mean the statute does not apply, I gathered from the text of his brief.

Mr. Matthew J. Perry: Yes, sir.

Justice William J. Brennan: That statute has no obligation upon the sheriff as he is the arresting officers, but only a deputy sheriff.

Mr. Matthew J. Perry: Apparently so.

However, I -- it's -- perhaps stretching the -- the rule of strict interpretation and technicality, a little too far to suspect that the legislature intended that a deputy sheriff to pick a man up without a warrant and carry him and be required to carry him forthwith to a magistrate and not place the same requirement on the sheriff.

Justice Felix Frankfurter: Don't sheriffs have a metric?

Mr. Matthew J. Perry: Yes sir, they have.

Justice Felix Frankfurter: Well, what -- what's their tenure?

Mr. Matthew J. Perry: Four years.

Justice Felix Frankfurter: Is the deputy sheriff appointed by the sheriff?

Mr. Matthew J. Perry: Yes, sir, he is.

Justice Felix Frankfurter: So, he is a -- he is a --

Mr. Matthew J. Perry: Yes, sir.

Chief Justice Earl Warren: Does the -- did your Supreme Court interpret the statute that way?

Mr. Matthew J. Perry: The Supreme Court did not have the occasion to interpret.

As matter of fact, it wasn't -- this particular statute was not urged to the Supreme Court.

It was --

Chief Justice Earl Warren: Who --

Mr. Matthew J. Perry: -- was --

Chief Justice Earl Warren: Who interprets this statute to -- to the effect that it applies to the deputy but not to the sheriff himself?

Mr. Matthew J. Perry: Well, a counsel placed that interpretation by reason --

Chief Justice Earl Warren: It's not -- it's not a judicial --

Mr. Matthew J. Perry: Yes, sir.

Chief Justice Earl Warren: -- not a judicial interpretation?

Mr. Matthew J. Perry: That is not a judicial interpretation.

Chief Justice Earl Warren: Yes, right.

Mr. Matthew J. Perry: No, sir.

The -- the petitioner was -- was continuously interrogated.

That I believe is another one of our contentions concerning the -- the chain of circumstances which we are --

Justice John M. Harlan: What was the longest time of the record shows that he was interrogated one time at one period?

Mr. Matthew J. Perry: If I'm not in error, I believe an hour and a half to hours.

The sheriff testified that he was present during the interrogation of the accused in the old county jail for a period of approximately an hour and a half to an hour and 45 minutes.

Justice John M. Harlan: (Inaudible)

Mr. Matthew J. Perry: He did not, however, state that when he left the old jail, that the questioning ceased and there was no other testimony by any of the -- the deputy sheriffs concerning how much longer the questioning continued.

The next issue -- the next item of testimony on the issue of -- of interrogation is during the period that the interrogation ensued in the office of the presiding judge which adjoins the courtroom.

And the testimony there is that the questioning continued for approximately an hour and 15 minutes.

It is submitted, however, that the sheriff after the preliminary examination had been conducted in the absence of the jury, the sheriff was asked on direct examination by the solicitor whether or not the confessions were the product of several days questioning and the sheriff stated that they were.

We also offer that as some evidence that the questioning was perhaps more lengthy than the only testimony on that issue might show.

Justice John M. Harlan: Is he arrested on 8th?

Is that 7th --

Mr. Matthew J. Perry: He was arrested on the 7th.

Justice John M. Harlan: -- and answer the questions signed on the 11th.

Mr. Matthew J. Perry: Yes, sir.

That is correct.

Justice Hugo L. Black: What time of the day on the 7th?

Mr. Matthew J. Perry: He was arrested on the -- the late afternoon of the 7th.

In the early night, I would say.

Justice John M. Harlan: Is there any way you can tell in the record the total number of hours, in that interval that he was subjected the question?

Mr. Matthew J. Perry: No, sir, because the only -- the only direct testimony on that issue comes from the sheriff himself.

And on those two occasions, he testified it seems that a total period according to the testimony of the sheriff might be left in three hours.

Although the sheriff does not -- does not say that he was present at all times that the other officers had the custody of the accused.

The next item that we contend which should be added on the circumstances to be considered by this Court is the fact that the -- the petitioner was moved about first of all from the new jail over to the old jail, which houses no prisoners and we do urge that it's an unoccupied place.

It does not show that there are any particular devices of law enforcement or -- or any conference rooms which the old jail had and which the new jail did not have.

As a matter of fact, it would seem that the new jail would certainly have better law enforcement devices than the old jail.

And that he was moved from there to the -- the courtroom or the judges chambers adjoining the courtroom and that he was then moved up to a motel.

I beg your pardon.

He was taken into -- to the county jail then to his home then to the motel and ultimately to adjoining Marion County.

Justice John M. Harlan: Was there any motive for this crime shown?

Mr. Matthew J. Perry: There was no motive shown, sir.

Justice John M. Harlan: I notice that Court of Appeals says that there os no claim, rape case?

Mr. Matthew J. Perry: That is correct, sir.

It was urged to the Supreme Court of South Carolina that it was error to have permitted the examining physician to testify.

Justice John M. Harlan: The record is barred of any motive?

Mr. Matthew J. Perry: That is correct, sir.

Justice Charles E. Whittaker: Well, may I ask you?

You stated as an answer question earlier that there was evidence that the shooting, the murder occurred in the cemetery.

Mr. Matthew J. Perry: That -- that there is evidence to that if we --

Justice Charles E. Whittaker: Well, now, did Horne testify?

Mr. Matthew J. Perry: Horne did not testify.

Justice Charles E. Whittaker: He is the man who is with the lady?

Mr. Matthew J. Perry: That is correct.

Justice Charles E. Whittaker: Well then, why didn't he testify?

Mr. Matthew J. Perry: That of course, we -- it was urged to the court below that -- that the absence of Horne left the status of this case in such a condition that it was error for the court below -- for the general sessions court of Dillon County to have denied the request for continuance.

Justice Charles E. Whittaker: By whose testimony was it shown that the girl was shot in the cemetery?

Mr. Matthew J. Perry: By the confession of this petitioner.

Justice Charles E. Whittaker: Only that?

Mr. Matthew J. Perry: However, the -- the -- a citizen who resides in close proximity to the cemetery testified that Horne came to his house at about the time that -- or shortly after the shooting allegedly occurred.

Justice Charles E. Whittaker: Well, this confession involving the shooting says he shot -- he shot her in the -- in the swamp, which is not in the cemetery, but some distance from the cemetery.

Mr. Matthew J. Perry: There are --

Justice Charles E. Whittaker: I thought the --

Mr. Matthew J. Perry: -- two statements sir --

Justice Charles E. Whittaker: -- confession says.

Mr. Matthew J. Perry: There are two statements as I recall, sir.

Justice Charles E. Whittaker: Well?

Mr. Matthew J. Perry: Both of which of course indicate -- one of which indicates that that the firing occurred in the cemetery and ultimately, the other one states that the -- that another bullet was fired some distance from the cemetery where the body of the deceased had been carried or where the lady had been carried prior to the time she was fatally shot.

Justice Charles E. Whittaker: Well, on his first confession, this long one, he says, "On the cemetery, I saw a car parked.

I walked on a piece further and I pulled out my mess and started shooting."

Later on, he says, "After we've gone into the swamp, I was standing about two feet from her when I took the gun out of my pocket and fired one time into her head."

That wasn't in the cemetery, was it?

Mr. Matthew J. Perry: That was some distance from the cemetery.

Justice Charles E. Whittaker: Last?

Mr. Matthew J. Perry: The last occasion.

Yes, sir.

Justice Charles E. Whittaker: Then, what evidence is there aside -- do you -- do I understand you said there is no testimony aside from the confessions that the girl was shot in the cemetery?

Mr. Matthew J. Perry: Other than these signed confessions, sir.

Of course, the other evidence is circumstantial.

There was some evidence of -- of blood marks on the leaves just outside the automobile and the bag that the lady's underwear was found and her slip was found, all making a path in the general direction of the point where the body was found.

But it is respectfully submitted that there is no evidence, no -- no concise or direct evidence that the shooting of the deceased actually occurred in the cemetery.

Justice Charles E. Whittaker: Well, was Horne also shot?

Mr. Matthew J. Perry: The evidence was that Horne was also shot and a bullet was received in the court below and the Court of General Sessions allegedly removed from Horne.

I might say that the ballistics expert who testified could not say precisely that the bullet which was removed from -- from the deceased bore markings similar to the bullet to a test bullet fired from Bullock's gun.

However, the same ballistics expert did testify that another bullet which was identified as having been removed from Horne did pass similar markings to a test bullet fired from Bullock's gun.

Chief Justice Earl Warren: Was any explanation made at the trial why Horne was not called (Voice Overlap) --

Mr. Matthew J. Perry: It seems that Horne had -- had been in an accident after this killing and before the trial and was on the day of this trial confined to the hospital, I believe paralyzed.

However, the -- the General Session's Court was urged to continue the case by reason of the absence of Horne.

It was felt by defense counsel that -- that they should have an opportunity to examine Horne and perhaps find out a little bit more about this matter.

And so, it is respectfully suggested that -- that Horne being the only eye witness, if -- if it can be said that he was an eye witness to any shooting at all was a material witness to this prosecution.

Justice Charles E. Whittaker: Was any effort made to defer the trail pending Horne's ability to get out to testify?

Mr. Matthew J. Perry: The -- the defense counsel, Mrs.Britt and Hawkins, two very able counsel of Dillon South Carolina strenuously urged to the General Session's Court to continue the case, to allow them more time to investigate and prepare their defense and as part of their -- their insistence upon a continuance, they also urged that Jimmy Horne was not present in Court to testify.

Justice Charles E. Whittaker: Does your law allow the taking of depositions in a criminal case?

Mr. Matthew J. Perry: Yes, sir, it does.

And it does not appear that this was done although bear in mind that the -- the counsel did not perceive of Bullock's defense until a very short time before he was tried.

And they were very busy with other trials in the same term of court for which they have been compensated and possibly did not perceive of the -- the method of taking the deposition.

Moreover, I think that they might reasonably have been expected a continuance because of the absence of this witness.

Justice Hugo L. Black: Where is the statement where they requested his opinion or the reason he's absent?

Mr. Matthew J. Perry: In the affidavits of counsel which is included in the -- in the record.

If I recall, I believe it appears at the -- at the beginning of the testimony and before the matter to proceed.

Now, the affidavit begins on page 8 and continues through pages 9, 10 and 11.

Justice William J. Brennan: Is this part of the totality picture?

Mr. Matthew J. Perry: Yes, sir.

I respectfully submit that it is a part of the totality picture.

Justice Felix Frankfurter: You mean the deal for a continuance?

Mr. Matthew J. Perry: I beg your pardon.

I -- I did not intend to say that the denial of the continuance was a part of the totality picture.

I simply urge that of course, in the background bearing in mind that the Court, I believe, makes its independent examination that deep down in this record, there is some lead to speculate as to why this man was not present.

And I merely said in answer to the question of Mr. Justice Whitaker that -- that the request was made in the motion for a continuance.

I might say that my last item on this totality picture, if might call it the last item is the fact that the petitioner did not consult with a lawyer during the entire period of his incarceration beginning August the 7th through August the 11th.

Justice John M. Harlan: Does the record show that he asked for a warrant?

Mr. Matthew J. Perry: No, sir, it does not.

Justice John M. Harlan: Was there any lawyer sought to see him and required to refuse admittance?

Mr. Matthew J. Perry: No, sir, it does not.

The record does not show that.

However, we do say that -- that possibly on our contention that he was being held incommunicado and adjoining Marion County is -- is an item of evidence that he was being held incommunicado and we -- we respectfully submit that this along with the fact that he did not -- that he did not consult with a lawyer and no one else advised him of his right to counsel nor of his right to remain silent and demand a hearing.

Justice Felix Frankfurter: Does it affirmatively appear that he was not told that he should have a lawyer?

Mr. Matthew J. Perry: It does not affirmatively appear, sir.

But --

Justice Felix Frankfurter: Under your -- under South Carolina law, when a man is arraigned that the magistrate of whoever the judicial official is.

Is he under either the practice duty or statutory duty to advice who advised in of his rights?

Mr. Matthew J. Perry: Under a practice duty, I respectfully submit, but not under a statutory.

Justice Felix Frankfurter: Was the -- because you said he had two able counsel assigned to him, is that right?

Mr. Matthew J. Perry: Yes, sir.

That is correct.

Justice Felix Frankfurter: He said be comfortable.

Mr. Matthew J. Perry: Yes, sir.

Justice Felix Frankfurter: Did they -- in the trial court or at any stage that he was taken, was it suggested that he was not advised of his right of words?

Mr. Matthew J. Perry: I respectfully submit that -- that the record does not show that -- that an issue was made on that particular point.

Chief Justice Earl Warren: When was he arraign Mr. --

Mr. Matthew J. Perry: Under South Carolina procedure, the arraignment has had at least three days before the accused is brought forth to trial and this of course is during the term of the Court of General Sessions that was in October, some two or three months after the -- after the arrest.

Justice Felix Frankfurter: When you say arraigned, in three days before a trial (Inaudible), presumably the trial, your trials aren't so rapidly on the heel of arrest with a good deal of sometimes weeks most of that before the trial.

Mr. Matthew J. Perry: Yes, sir.

That is correct.

Justice Felix Frankfurter: Well, what's the bearing of these three days before the trial, I don't understand.

Mr. Matthew J. Perry: That is -- is a rule which -- which our courts follow, Mr. Justice Frankfurter.

Justice Felix Frankfurter: But he has been arraigned already before the magistrate, hasn't he?

Mr. Matthew J. Perry: Actually --

Justice Felix Frankfurter: (Voice Overlap) -- what you call arraign pleading to the indictment?

Mr. Matthew J. Perry: Yes, sir.

That is correct.

Chief Justice Earl Warren: And that was only -- that was only three days before indictment?

Mr. Matthew J. Perry: That is correct, sir.

Chief Justice Earl Warren: I mean, before the trial.

Mr. Matthew J. Perry: Before the -- before the trial.

Chief Justice Earl Warren: Yes.

Mr. Matthew J. Perry: Possibly a little more than three days since the Court itself gave I believe some extra time after counsel stated that they would like some time to prepare but within the same terms.

I believe this having been a two-week term of Court of General Sessions.

Chief Justice Earl Warren: Does the record show when he first saw his attorneys?

Mr. Matthew J. Perry: That he first saw his attorneys only a few days before his trial.

His --

Chief Justice Earl Warren: Well, they'd (Voice Overlap) --

Mr. Matthew J. Perry: The affidavit of counsel was to the effect that they learned that the accused had been found to be not insane.

On or about October the -- the 4th or 5th and on October the 7th, they requested the Solicitor to have the petitioner brought back to Dillon County in order that they could confer with it since that they have no -- no funds for transportation or anything.

In South Carolina, the appointment of the Court requires counsel to serve without compensation.

And the Solicitor apparently promptly advised the sheriff or requested the sheriff to return the prisoner to Dillon County.

This -- the letter of the Solicitor was -- was dated October the 8th.

The term of Court began as I recall on October the 16th and it appears that -- that counsel did confer with him after he was brought back, although it does not appear exactly when the prisoner was returned.

I hasten to say it does not appear when he was returned, but he certainly was returned prior to the opening of the Court of General Sessions.

May I reserve --

Chief Justice Earl Warren: You may.

Mr. Matthew J. Perry: -- my time for reply?

Chief Justice Earl Warren: You may.

Mr. Matthew J. Perry: Thank you very much, sir.

Chief Justice Earl Warren: Mr. Kilgo.

Argument of Robert L. Kilgo

Mr. Robert L. Kilgo: Mr. Chief Justice, may it please the Court.

At the outset, I would like to state that as a prosecuting officer in this case, Solicitor of the Fourth Judicial Executive of South Carolina, I am accompanied here by the Attorney General of the State of South Carolina and Sheriff Rogers of Dillon County, the sheriff who made the arrest in this case.

I would like to state to the Court the outset that if you afore brutality in law enforcement, you do not afore anymore than I do nor anymore than the Attorney General of South Carolina and the people of South Carolina and Sheriff Rogers, the sheriff in this case.

We do not desire convictions in our State by means of brutality and if the Court determines from the record in this case that there is one single act of brutality uncontradicted, we, of course want this case reversed and sent back.

Now, the position of the petitioner in this Court is simply this, that he was sentenced subjected to trial and had admitted an evidence against him by the State of South Carolina certain confessions that were extracted for him -- from him by means of force coercion, brutality.

Now, of course, the question is what has this Court determined amounts to coercion either physical or mental and we, in our State attempt to enforce the law, do what is necessary to investigate crime properly, also read the decisions of this Court so that we may -- we hold the best of our ability remain within the limits of this coercion that this Court has set out

And we have examined the cases cited by the petitioner of this Court commencing with Chambers against Florida in 1940.

That was a case in which the petitioner had been convicted in the State of Florida and confession was involved and that conviction would reversed on a showing undisputed, uncontradicted that the petitioners were subjected to five days of continuous questioning culminating in an all night session of questioning.

The sheriff in that case testified that he participated in the questioning during the day, but was so exhausted at night that he had to stand beside and let others conduct the night questioning of the petitioner, which resulted in a confession.

That was reversed and we think properly reversed, Chambers against Florida.

Now, 1942, Ward against Texas, you had a murder case, you had conviction in the state court, you had a confession as he urged to have started was result of coercion and he showed uncontradicted that the -- one of the officers slapped him while he was under arrest, that the petitioner was removed from one jail to another, to another and still another while his employer and attorney was going about following the officers from county-to-county trying to catch the officers so that he could serve a petition for writ of habeas corpus to -- to release his house servant.

Here, you're moving about one place to another to deny the prisoner the right to help from his attorney/employer.

During all of that time, he was continually questioned and he later confessed.

And as the turning point in his confession, he was told that there was threat of mob violence and that if he confess, officers would protect him.

Now, if you are convinced that -- that the petitioner in this case has shown that kind of coercion then we think the case should be reversed.

The next, comes a case from McNabb versus United States where similar unremitting questioning for two days in a barren cell after the defense was left in a barren cell for 14 hours very strong feeling of extended questioning almost amounting to brutality.

Now --

Chief Justice Earl Warren: We'll recess now, Mr. Kilgo.

Print this transcript Transcript: 

Argument of Robert L. Kilgo

Chief Justice Earl Warren: Mr. Kilgo, you may continue with your argument.

Mr. Robert L. Kilgo: Mr. Chief Justice, may it please the Court.

At the time of the recess, we were discussing the prior decisions of this Court on related questions.

We were discussing the case of Mcnabb versus -- versus the United States, merely states, as the Court so well knows that that case involved -- involved Rule 5 (a) of the Federal Rules of Procedure and this Court has held that of course your interpretation of the circumstances where the Rule 5 of the federal rules that's involved is entirely different from a case such as the other -- as this tried in the state courts.

And you did hold in that case, however, that the mere fact of the confession was made while in the custody of police, does not render inadmissible.

Now, in 1948 in Haley versus Ohio, the conviction of robbery and murder and the state court was reversed in five, four decision where the voluntariness of the confession was attacked.

In that case, the petitioner was arrested at his home at midnight.

He was a 15-year-old boy.

He was questioned from midnight to dawn.

No one was allowed to see him.

He was held incommunicado from Saturday until -- until Tuesday.

His lawyer, attorney was denied the right to see him on request.

His mother requested to see him and was denied.

You reversed that court and held that his confession was, as a matter of law, not voluntary.

In Watts against Indiana decided in 1949, the case was reversed six-three.

A confession was involved in the case.

The same grounds were raised as it raised in presents -- present case.

The defendant there or petitioner was questioned day after day for several days as late in the morning as 2:30 a.m. one day, 3 o'clock a.m. another day, all day long another day from 6 p.m. until 3 a.m. on Monday and Tuesday when his confession was obtained.

You had long and extended periods of question and into the late hours 3 a.m. -- late hours of the night in that case on six-three decision was re -- reversed.

Now, this Court held in that case, however, that in considering these confessions where a jury has decided the case and heard all the facts and reached this decision at this Court and considering whether or not that confession is voluntary, will deal only with uncontradicted facts.

Now, Turner against Pennsylvania was decided in 1949.

That was a murder case.

A confession was obtained from the petitioner.

He was questioned three or four hours on the first afternoon, then 8 until 11 that evening, questioned the next day, five hours, the next day, four days -- four hours, the next day, six hours and his questioning on the last day ended at 11 p.m. and resulted in a confession.

He was not permitted to see friends, all relatives during the entire period of custody.

In addition, the trial judge on that case refused to charge upon request -- refused to charge the jury that they could consider the long period of interrogation in determining whether or not the confession was voluntary.

Now, Harris against South Carolina, another reversal, decided in 1949 without pouring the Court the details, I know the Court is familiar with it.

You had there again long continuous questioning many days on a row and a threat on the part of the officers to the accused that his mother would be arrested if he did not confess.

And as a result of that threat, he confessed.

The Gallegos against Nebraska was a case that was affirmed six-three, 1951.

The defendant in that case, the petitioner was held 25 days under arrest before he was arraigned or advised of his rights.

That case was affirmed.

Stone against New York, decided in 1953 was affirmed six-three.

You had long periods of invest -- of questioning overnight of the defendants in that case and the case was affirmed six -- five-four.

Fikes against Alabama was reversed, similar situation.

And in that case, in addition to one week of isolation, the petitioner was kept in isolation for a week except for short periods of questioning.

Petitioner's father and attorney were barred in attempts to see him.

Question -- questioning lasted several hours at the time over a period of five days.

Court held that -- in addition that this petitioner was uncontradictedly a schizophrenic, left school at 16 and psychiatrist testified that he was schizophrenic.

In the Mallory case, the Mcnabb rule applies.

That does not apply in this case.

Payne against Arkansas decided in 1958 was reversed seven-two.

The elements presented by that petitioner indicating coercion where the -- the members of his family were barred from seeing him during his entire period of incarceration.

He was not permitted to make a telephone call when he requested the same.

He was denied lunch, denied the evening meal and in fact denied food of every kind for 40 hours with the exception of two sandwiches.

And -- and finally, to extract the confession from the petitioner, he was told that a mob was outside ready to come and get him and that a confession was to prevent the mob taking him.

Justice Charles E. Whittaker: I have to confess that statement was admitted by the sheriff or was it an uncontradicted fact?

Mr. Robert L. Kilgo: I beg your pardon sir.

Justice Charles E. Whittaker: I say, as I remember, the statement that a mob was outside waiting to get him was admitted to have been made by the sheriff.

Mr. Robert L. Kilgo: Yes.

Justice Charles E. Whittaker: Thus, concede that he made the statement in that case, didn't he?

Mr. Robert L. Kilgo: Yes.

Justice Charles E. Whittaker: So that was an uncontradicted fact.

Mr. Robert L. Kilgo: Yes, sir, uncontradicted fact and the petitioner had knowledge of the fact that the mob was outside.

Now, in the present case, this is of course, the Court knows as what we call the "lovers lane slain." On August 3rd of 1958, sometime between midnight, 1 o'clock a.m., a Saturday night and Sunday morning, the victim in this case was in an automobile parked in a cemetery.

He had a male companion.

"Someone," we say, the petitioner, "came up behind the automobile and commence firing into the automobile.

The victim who was later killed and the man who was with them both left the automobile, this is uncontradicted and indirect.

They both ran from the automobile.

He was hit in the shoulder."

Justice Potter Stewart: Mr. Kilgo, when you say this is uncontradicted and in the record, who gave this evidence?

Mr. Robert L. Kilgo: This evidence was the result of testimony of several witnesses.

First, the -- the confession --

Justice Potter Stewart: Yes.

Mr. Robert L. Kilgo: -- of the petitioner --

Justice Potter Stewart: Yes.

Mr. Robert L. Kilgo: -- outward said that he pulled his gun out and commence firing.

Justice Potter Stewart: But beyond (Voice Overlap) --

Mr. Robert L. Kilgo: The doctor --

Justice Potter Stewart: Excuse me.

Mr. Robert L. Kilgo: The man to whom the companion, Horne went to for help.

He testified that Horne came to him with a bullet wound in his right shoulder and came right back to the scene with him.

The petitioner says that when -- in his confession that when they left, he followed the victim to the road and then took her through the woods where he later killed her.

Justice Potter Stewart: Yes, but aside from the confession, what you're telling us now as to what happened in the car -- parked car is unsupported by any evidence, isn't it?

Directly.

Mr. Robert L. Kilgo: The direct evidence aside from the confession, that is correct.

Justice Hugo L. Black: I noticed on page -- excuse me.

Justice Charles E. Whittaker: (Voice Overlap) -- go ahead --

Justice Hugo L. Black: I noticed on page 7, a statement by you made in connection with a motion for continuance saying that you have made all papers of evidence that you had available to the defendant's counsel and I gather that that includes a statement made by this man Horne to the coroner.

Mr. Robert L. Kilgo: Yes, sir.

As you will -- as you will note, sir on --

Justice Hugo L. Black: Is that what's -- it was later on, was it not, that -- that they made another motion for continuance and that they at that time still insist that Horne's absence was a reason for continuance?

Mr. Robert L. Kilgo: They did, yes, sir.

And the continuance was denied by the trial court.

Justice Hugo L. Black: I didn't find that in the second motion that they made, maybe it isn't?

Mr. Robert L. Kilgo: It -- I do not believe that that is in their affidavit but they -- they made the -- they took the position in their motion, in court that they should be permitted to -- the case should be continued so that they would have an opportunity to put the witness Horne on the stand.

Justice Hugo L. Black: Was there any statement made there to show that how badly he was injured or what was the matter in the record?

I can't find it.

Mr. Robert L. Kilgo: I do not know if there is any statement in the record as to how badly Horne was at that time hurt.

We stated that he was unavailable in the hospital and we did not know whether he would ever be available or not.

Justice Charles E. Whittaker: Are you able to tell us whether or not his testimony before the coroner had been transcribed?

Mr. Robert L. Kilgo: He -- he testified at the coroner's inquest.

The coroner's inquest was available to defense counsel, a matter of record in Dillon County.

Justice Hugo L. Black: That's what I read the view on page 7 where you said, "We have his full testimony given to the coroner's inquest, which is of course available to the defendant's counsel."

And I'm quite sure that the examination of his testimony will show that he should not in any sense be a defense witness.

Mr. Robert L. Kilgo: That is correct, sir.

Justice Hugo L. Black: After that, did they -- after that -- insist on using him as a witness waiting for it.I didn't find that way.

Mr. Robert L. Kilgo: They never abandoned their motion for continuance.

Justice Hugo L. Black: No.

Mr. Robert L. Kilgo: And that statement was made during the colloquy concerning whether or not the continuance should be granted.

They never abandoned the motion for continuous but it was not granted.

Now, if the Court please, the -- we have stated to the Court when this crime occurred.

Now, late Saturday night, early Sunday morning the following Thursday at 5:30 in the afternoon August 7th, the sheriff of Dillon County having considered who might have been the perpetuator to this crime and for other reasons that are not in the record, we can't go into.

We don't want to go into them.

He went to the defendant's home, the petitioner's home and arrested him at 5:30 in the afternoon.

He questioned him briefly as to whether or not he had a pistol.

Of course, the record shows that we then had ballistics information on the -- on the bullet removed from the shoulder of Horne, and some ballistics on the bullet removed from the victim, Ms. Barfield.

The petitioner was in question briefly at his home as to pistol and as to his whereabouts on the night in question.

He gave the story, gave the sheriff an alibi stating that he had been in Whiteville, North Carolina and related that he went there on a bus and he came back -- spent the night and came back by hiring someone else to bring him the following morning.

The sheriff arrested them -- arrested the petitioner then, lodged him in jail for the night and of course began to investigate his alibi concerning the trip to Whiteville.

Now, it's is significant that he questioned him only briefly at his home then took him to jail, 5:30 p.m.

Thursday as when this commenced.

He did not question the petitioner Thursday night at all.

When was the next questioning?

8:30 or 9 o'clock the next morning, sheriff testified in the record that he went by the county jail and talked to the petitioner four or five minutes, talked with him at the jail.

He then left, so the petitioner no more until that afternoon at 2:30 or 3 o'clock.

The sheriff of Dillon County and one deputy picked up the petitioner at the jail and talked with him 30 or 40 minutes.

Then he left.

Later, the sheriff and four officers talked with the petitioners at the judge's chamber and he testified to get away from the crowd.

And then he testified at that -- at the jail, there was a crowd of some 200 or 300 people around.The petitioner denies in the record that he knew they were there.

The sheriff knew he was there, moved him from the jail up to the county courthouse in the center of town, went into the judge's chambers.

The Court was not in session.

And the question --

Chief Justice Earl Warren: May I interrupt just a moment to ask, was that the old jail -- the old jail that you're talking about now or they just --

Mr. Robert L. Kilgo: The old jail that -- the two jails, they're side-by-side.

Chief Justice Earl Warren: Oh, they're side-by-side.

Mr. Robert L. Kilgo: Recently built new jail and he was questioned in the old jail and moved up to the courthouse.

Chief Justice Earl Warren: Is there any explanation as to why they took him to the old jail in --

Mr. Robert L. Kilgo: There's no -- no explanation in the record, sir.

Chief Justice Earl Warren: Nothing -- nothing in the record.

Mr. Robert L. Kilgo: They -- It's only a matter of conjecture.

Chief Justice Earl Warren: But they're both --

Mr. Robert L. Kilgo: The sheriff testified that he was not touched, he was threatened.

He was merely asked some questions.

Chief Justice Earl Warren: And that the old jail, is -- is immediately decided to new jail.

Mr. Robert L. Kilgo: Immediately decided to new, yes, sir.

Now, the sheriff and four officers questioned the defendant in the judge's chamber of the courtroom an hour and 15 or 20 minutes.

Now, that's Friday afternoon -- last day afternoon after his first arrest.

Significantly, during that investigation, the sister-in-law of the defendant was there.He was being questioned further about the pistol and his alibi.

He denied owning a pistol.

At that questioning, an hour and 20 minutes, most the sheriff said, with his sister-in-law present, she confronted the petitioner with the fact that you had a pistol in my home last Saturday night, the night this murder was committed.

And here was petitioner denying that he owned a pistol or knew anything about the pistol.

As a result of her confronting him with that when she stated in his presence -- in the presence of the officers that you removed, I believe, he said, he called the pistol at hand and removed the nine cartridges from the pistol in her presence.

As a result of her confronting him, the record shows that the -- two of the deputies went down to the defendant's home and found the pistol concealed by his bed in the wall of his home, 22 pistol as described by the sister-in-law and the pistol was brought back.

Now, shortly thereafter, the petitioner was moved from the judge's chamber, not taken back to the jail where the crowd had gathered, taken to Marion a little town 19 miles away from Dillon and large there in the Marion County Jail.

There's no evidence of any crowd there.

The only reason he was taken there was to avoid the crowd that was at the jail in Dillon.

Chief Justice Earl Warren: That -- that's the testimony in the record, that that was the (Voice Overlap) --

Mr. Robert L. Kilgo: The testimony in the record sir is that he would remove from the courthouse to the Marion County Jail.

Chief Justice Earl Warren: Yes, for -- for any particular reason?

Mr. Robert L. Kilgo: The reason was not given in the record.

Chief Justice Earl Warren: Not given.

Mr. Robert L. Kilgo: Now, the sheriff testified that he sat in the back seat of the automobile with the petitioner.

He talked with him on the way to Marion and talked 20 or 25 minutes in the Marion Jail yard and he gave as the sheriff expressed today, reasonably full confession sitting in the jail yard.

Now, I have added up giving him the benefit of every doubt where he says 15 to 20 minutes, we've taken 20 minutes.

The total question in the time this petitioner was arrested on 5:30 -- at 5:30 Thursday afternoon until he gave a reasonably full oral confession on Friday was two hours and 30 minutes.

He missed no meals.

He made no request to see anyone.

He saw his wife.

He saw his sister-in-law.

He was not questioned early in the morning.

He was not questioned late at night.

He makes no contention that he was denied any of the comforts that he should have had.

Chief Justice Earl Warren: Does the record show how long his wife was in jail?

Mr. Robert L. Kilgo: The record shows that his wife was arrested on Thursday with him when he was originally arrested and the record shows that on the request of her sister-in-law the next morning she said, "Well, why are you holding the wife?"

The sheriff said, "Well, we'll release her."

She was released the following morning.

Now, petitioner takes the position now that he was held incommunicado.

There's not one word in the record that he ever asked to see anyone.

There's not one word that he ever asked to see an attorney, his own doctor, as the record shows saw him on Monday.

Now, on Friday afternoon in Marion Jail, or early Friday night, he made a reasonably full oral confession.

He was left in Marion County.

The record shows, it doesn't say why but the record shows that there was a crowd in Dillon County and that he was left in Marion County.

Sheriff Rogers testified that he went back to Marion on Saturday the next day and had a conversation with the defendant, and that he went back on Sunday and had a conversation with the defendant.

And on Sunday night, he testifies that the defendant and he got in a discussion about the way that the roads in the cemetery run.

The sheriff was under the impression -- the road turned in a certain way and the defendant insisted, "No, it turns another way."

So they moved from Marion over to the Dillon cemetery and the -- and the petitioner gets out and proved to Sheriff Rogers that he was right.

Sheriff's testimony was that the defendant's says, "Now, this proves I'm telling the truth that this road runs exactly like I said."

Now, he was kept in the Dillon County Jail Sunday night and Monday, the day that he -- that's three days after his oral confession.

He went -- first the -- the written confessions were prepared.

He gave the information that was written there and they were read over him, he was given a copy of it, he signed it and -- and those two, they were two, gave one then he went to the scene and reenacted the crime to the officers.

He went to the cemetery and told them where the automobile was located.

He went and showed the officers where the young lady was, the victim on the side of the road.

Then after that, with the officers present and with his employer, Mr. James Moody, the man from whom this defendant work.

Mr. Moody operated an eating house, he was a dishwasher -- dishwasher, the petitioner was.

And Mr. Moody was incidentally also a newspaper reporter who reported this case.

In the presence of his employer and the officers, he was taken to the other side of Maple Swamp where the National Guard searched all day Sunday into the seniti where this body was finally found and they searched all around the area and couldn't find it.

They stopped the car 200 yards from where the body was found.

The petitioner got out of the car, led the officers and his employer, the newspaper reporter, straight to the secluded spot where the body was left and said, "This is where I left her body."

And he says that at daylight, she looked up and saw me and recognized me.

I walked around behind her as she sat on the ground and shot her in the top of her head.

Now, he testified at the trial that he had never been in the -- they had not been in the cemetery or the seniti where the body was found at any time within the past year.

And yet, he himself led the officers to the secluded spot one mile and a quarter from the cemetery where he killed her at daylight.

Chief Justice Earl Warren: Mr. Kilgo, may I ask if there was any disclosed motive for this crime or whether the prosecution advanced the theory as to motive during the trial?

Mr. Robert L. Kilgo: We had no theory as to motive.

Chief Justice Earl Warren: I beg your pardon.

Mr. Robert L. Kilgo: We had no theory as to motive.

Chief Justice Earl Warren: Yes.

Mr. Robert L. Kilgo: There was no attempt to prove them both.

Chief Justice Earl Warren: Yes.

Not -- not necessary, I was going to say that I --

Mr. Robert L. Kilgo: No sir.

Chief Justice Earl Warren: -- I just wondered if there was anything in the record.

Mr. Robert L. Kilgo: There was no attempt sir.

Chief Justice Earl Warren: Yes.

Justice Hugo L. Black: But he asked anything about it when the confession was given, why he did it?

Mr. Robert L. Kilgo: I do not know of my knowledge, the record shows nothing concerning any question involving motive.

I'm satisfied there was no question as to motive.

Now, we have here a petitioner who was arrested 5:30 one afternoon and about 24 hours later, two hours and thirty-minute outside, question.

The longest period being one hour and twenty minutes at the outside, no coercion, no refusal of food, no refusal or denial of sleep, no unusual hours, merely question and he gives a confession in 24 hours.

Now, as to whether or not he was incommunicado, the record does not show that he ever requested to see anyone.

The record does not show that he asked for an attorney.

The record shows that he was in the presence of his wife for some time and in the same jail with her overnight.

The record shows that his sister-in-law talked with him at length in the presence of the officers.

There was almost a parade of communication that this defendant had in various people.

The record showed he'd been in jail before he knew his rights.

The record shows that he had ample opportunity to request counsel or request help.

He was denied nothing.

Now, he states at the trial that he was beaten which caused him to late -- this confession, 24 hours after he was arrested.

Three days later, at the trial, he made no contention that he was beaten again.

Three days later, he formally signs two written statements and takes the officers to the scene of the crime and reenacts the crime and leads them to the spot where the victim lady could not have possibly have known had he not been the man who did it.

Justice Charles E. Whittaker: Was there some independent evidence that placed him near the scene of this accident -- this murder on the day it happened?

The taxi cab driver, did he testify?

Mr. Robert L. Kilgo: Yes, sir, he testified.

Justice Charles E. Whittaker: The taxi driver.

Mr. Robert L. Kilgo: Yes, sir.

Justice Charles E. Whittaker: He picked him up at the PD Trading Post as I recall?

Mr. Robert L. Kilgo: That's correct, sir.

Justice Charles E. Whittaker: Now, that's close to where the body was found?

Mr. Robert L. Kilgo: That is less than a mile from where the body was found and is the place that the Petitioner said in his confession that he went to after he killed the victim, that he went to the trading post and called a taxi.

Justice Charles E. Whittaker: Is that in the same general direction as this cemetery?

Mr. Robert L. Kilgo: That is a --

Justice Charles E. Whittaker: From the town?

Mr. Robert L. Kilgo: No, sir.

The spot where the body was found is between two roads.

On one road is cemetery.

On the next road is the trading post.

In between the two is where he left the body.

In his confession, he says that he went to the trading post and called a taxi.

The taxi driver testified and said as a result of a call, he went to the trading post and pick the defendant up and that his clothing was wet from his knees down and that the defendant say he's been out in the woods all night.

Now, so this Court has held, time and time again that the interrogation alone is not sufficient coercion to set aside will make in it -- will make involuntary, a confession other were -- otherwise voluntary.

There is -- this Court has also held that in considering whether or not a confession is voluntary that you will consider only the uncontradicted evidence.

Now, I understood counsel for petition and to take position that the evidence of this petitioner was beat and could hardly walk, other evidence of brutality was not controverted.

On page 228 of the record, the Deputy Sheriff Harley Allen was asked specifically every question concerning every circumstance whether or not he was beat, whether he could walk.

Every single question that he raised was asked in particularity of the Deputy Sheriff and he denied each and every one.

So that --

Chief Justice Earl Warren: Was he there at all times?

Justice Charles E. Whittaker: He testified that he was there all the times unless he may have stepped out of the room for a few minutes to get a coca-cola, smoke and come back.

He said that in substance he was there during at all.

Sheriff Rogers testified fully and flatly denied through out all his testimony that there was -- the defendant was ever touched.

Chief Justice Earl Warren: Did anyone specifically denied that these bruises were on him or that he had a black eye?

Mr. Robert L. Kilgo: Dr. Brenwood (ph) came to the jail at the defendant -- at the petitioner's request on Monday, examined him and testified he saw no evidence of bruises or closed eye or any other mistreatment.

We introduced in evidence, a picture of the petitioner which he admits was made right after he signed the confession in the cemetery.

The picture was made in the cemetery.

And in between two officers a full-face picture of him, we say, showing no closed eye or no bruises that shows a picture of his left eye that he claimed was closed, that was submitted to the jury.

They considered that picture along with the other evidence in determining whether or not his confession was involuntary.

We have the picture.

This is not the picture that was marked.

It's been lost.

This is a copy of the same picture.

Counsel agrees that it is the same picture that Sheriff and the Court desire to see it, taken immediately after he signed his confession.

Unknown Speaker: When day is that?

Mr. Robert L. Kilgo: Monday.

Chief Justice Earl Warren: What day did he claim he was beaten?

Mr. Robert L. Kilgo: He claimed he was beaten on Friday.

Chief Justice Earl Warren: On Friday.

Justice Charles E. Whittaker: Doesn't he say he was also beaten on Monday?

Mr. Robert L. Kilgo: Our recollection, sir was that he testified that he signed statements on Monday so he wouldn't -- they wouldn't get at him anymore.

I did not think he testified that he was beaten.

He remembered that -- his alleged beating on Friday, did not want that to be considered.

Now, there isn't involved in this case any dragnet operations or going out, surrounding up the people all over the neighborhood and subjecting them to indignities and brutalities in effort to make one -- to make one final confessed to stop the brutalities.

There is no evidence of that in this case.

This defendant talked very freely.

He made no request for any -- any other things that occur in the other cases.

He was denied nothing.

He was questioned only short periods of time.

He gave a full confession with corroboration with the -- with the perpetuator of this crime alone, he could no.

He said not in a way that he had not committed the crime.

The precautions taken by the State to care for this defendant were extraordinary.

He was arrested on Thursday.

He confessed on Friday.

He signed the confessions on Monday, the 11th.

He was on the state's motion by the Court, sent to the South Carolina State Hospital to determine whether or not there was any question about his sanity.

That was during the month of August and he was released on September 29th.

On -- on August 26, 15 days after his formal confession, he signed without request by him.

The Circuit Court of South Carolina appointed two-able-counsel to represent him.

Now, this appointment usually occurs on the commencement of court on Monday.

This appointment was made on August 26.

The Court convened on October 20, nearly two months later.

As the record will show that his counsel on October 7 which was 17 days before his trial commenced that he wrote the Solicitor of the Circuit asking that the prisoner be made available on October 7.

By return mail on October 8th, the Solicitor of the Circuit wrote a letter to the sheriff with copy to the petitioner's counsel directing the sheriff to immediately deliver the prisoner and make him available to this counsel and also to turn over to the petitioner's counsel every bit of evidence in the hands of the State of South Carolina.

Now, we have done everything that we can to protect this petitioner's rights.

Justice Charles E. Whittaker: Where would I find that statement?

You --

Mr. Robert L. Kilgo: You will find -- you will find the letter last referred to, sir, on page -- page 16.

Justice Charles E. Whittaker: Thank you.

Mr. Robert L. Kilgo: We have done everything that we know to protect this petitioner's rights.

He was ably represented.

He makes no claim that he made request of anything that wasn't granted to him.

This Court as I understand it -- as I understand the decisions, read the decisions, we are not denying the right of interrogation.

We did interrogate the prisoner but we interrogated him consistent with all reasonable law enforcement.

And I'm quite sure that this Court realizes -- I realized after eight years, an office in connection with law enforcement that the foundation on which investigation rest is interrogation.

Interrogation of the accused, interrogation of witnesses, that's the only way the officers can solve crimes.

We do not believe in brutality, we -- the officers of this country to my knowledge, in eight years, I have never known of an officer to be brutal to any person.

Justice Felix Frankfurter: Mr. Kilgo, you may have addressed yourself and so I missed it to the character or even -- what might be called inherent qualifications or limitations at this particular Quincy Bullock, the -- the handicap as it were, the disadvantage under where -- he was -- under which he being what he, having the qualities of mind but he had a -- didn't have kind of disadvantage with this situation as such, forced itself upon them in any kind of a give and take, an interchange the law, would you care to say something about that, if I made my question clear --

Mr. Robert L. Kilgo: I think --

Justice Felix Frankfurter: -- the fact -- the fact that he was a Negro, the fact that he was a alleged, fact that he had some psychological difficulties.

Now, what's bearing through those things have in the scale of judgment having to regard of what you said last, namely the responsibility and the power that law enforcement was already passed.

Mr. Robert L. Kilgo: I believe -- in fact to the man is illiterate and the member or minority raised does have considerable bearing on -- his reaction and treatment he may get.

We don't deny that but there is nothing in this record anywhere or anyone can say amounted to any kind of mistreatment to this man.

Law enforcement officers can't turn a man loose and say, "We're not going to bother because you're illiterate."

There was no advantage taken of him.

He gave his alibi.

First, he was asked, "Do you have a pistol?"

He denied it.

Now, his sister-in-law pinned the pistol on him.

That's how the officers got the pistol.

Next, he said he -- he gave an alibi and said he was in Whiteville with a certain bus schedule.

The sheriff knew the bus schedule is impossible.

The bus didn't run to Whiteville at the time he said it did.

But the sheriff of Dillon County went out and investigated the bus schedules and investigated his alibi in every detail and came back and found that it was not true.

And the defendant himself on the stand said his alibi was not true.

I don't know what else we could've done for him.

I agree with -- certainly, the reasoning that an illiterate man is not as well they would take care of himself with a literate man.

We don't question it.

Justice Potter Stewart: You say that he defended on the stand, testified that his alibi was not -- well, he got a different alibi at the trial, doesn't he?

His original (Voice Overlap) --

Mr. Robert L. Kilgo: Their different alibi at the trial would have -- at the trial, he said that he spent the entire night in the (Voice Overlap) --

Justice Potter Stewart: Yes.

Mr. Robert L. Kilgo: Because he drank a bottle of beer and he didn't want to drive home.

Justice Potter Stewart: Afraid to go home to see his wife.

Mr. Robert L. Kilgo: Yes.

But he admitted at the trial that he gave a false alibi to the sheriff.

Justice Potter Stewart: When he said he'd gone to Whiteville.

Mr. Robert L. Kilgo: Yes, Your Honor.

As a matter of fact, the investigation of -- of alibis is the -- is the one phase of law enforcement that enables the innocent to be quickly and -- and speedily released.

He's arrested or he's taken into custody.

He gives an alibi to check.

He alibi is found to be true and he is released and we serve society when we do that.

Justice Felix Frankfurter: What is your -- what is your practice?

I understood Mr. Perry to indicate that you had a practice, not a statutory duty under South Carolina Procedural Practice and -- and in the -- and what the magistrate tells to an arraigning person?

Of course, you though before him to be charged.

Mr. Robert L. Kilgo: I disagree with Mr. Perry.

I -- in my experience with the magistrates, I have never heard of the South Carolina magistrate advising a defendant as to his rights.

There's no requirement that he do so.

Justice Felix Frankfurter: Why don't they?

Mr. Robert L. Kilgo: They're not required and by customarily did not.

Generally, a magistrate -- generally, a magistrate does not see the accused at all.

The magistrate issues a warrant, the warrant is turned over to the sheriff, the sheriff puts the accused in jail.

And in 99 cases out of 100, the magistrate sets upon and that's all he does in 99 cases out of 100.

The next morning or that afternoon, the accused is out of bar.

He never sees him actually.

The warrant he served on him.

He's not advised.

Justice Felix Frankfurter: Well, that isn't true in the capital cases, is it Mr. Kilgo?

Mr. Robert L. Kilgo: Strangely, in capital cases, this is custom to their -- sell them a warrant issue.

There's never been a warrant issue principle --

Justice Felix Frankfurter: Well, what --

Mr. Robert L. Kilgo: -- and there never is in most.

Justice Felix Frankfurter: What's the machinery by which what --

Mr. Robert L. Kilgo: The machinery is -- is simply vested.

The -- when a homicide occurs, of course they -- and I don't know maybe 99 out of 100 cases.

There is no question about who perpetrated the crime or the only question is whether he acted in self-defense.

The sheriff goes to the scene as he's always called and generally, the perpetrator of the crime is standing there with a pistol.

He says, "Here, sheriff, he has the pistol, I killed him."

Generally, he says, "I killed him myself and so I'm turning myself over to you."

Sheriff puts him in jail.

He isn't -- he is eligible for bail immediately in South Carolina.

Justice Felix Frankfurter: (Voice Overlap) case --

Mr. Robert L. Kilgo: Yes, sir.

Justice Felix Frankfurter: -- in the murder case?

Mr. Robert L. Kilgo: Yes, sir.

He's eligible for bail immediately.

He doesn't have to go for a match.

The Circuit Court sets the bail and he is generally and the homicide case at South Carolina, the accused is arrested one day and that day or the next, he is released on bail.

And generally, in eight years of prosecuting in four counties, there's never been a warrant for a single homicide case that I've tried.

Justice Felix Frankfurter: And -- and -- in the course of those eight years, how many homicide cases in which people -- in which you had a good deal of assurance that you have -- that the police had the right man.

Did you allow people out on bail?

Is -- is that a matter of court to allow people charged with murder out on bail in South Carolina?

Mr. Robert L. Kilgo: Mr. Justice Frank --

Justice Felix Frankfurter: I had assumed at the contrary it was the practice, he learned, I maybe wrong.

Mr. Robert L. Kilgo: Mr. Justice Frankfurter, in South Carolina, my first three years, we --our Constitution provides that a defendant is entitled to bail except in a capital case where the proof is evident.

I have gone before judges to three -- my first three years trying to keep accused in jail without bail and never have succeeded yet.

So I gave up on him.

Justice Felix Frankfurter: What kind of bail -- what's -- what are the amounts of bail, roughly?

Mr. Robert L. Kilgo: The Constitution provides that the amount must be --

Justice Felix Frankfurter: No, in these capital cases.

Mr. Robert L. Kilgo: Sir?

Justice Felix Frankfurter: As I understood you just now that -- that your Constitution excepts capital cases from the bail requirement.

Isn't that right?

Chief Justice Earl Warren: Their proof is evident.

Mr. Robert L. Kilgo: Entitle bail except where the proof is evident.

Justice Felix Frankfurter: Yes.

Now, that -- that doesn't mean --

Mr. Robert L. Kilgo: And I've never --

Justice Felix Frankfurter: (Voice Overlap) catch him while he was committing a murder.

Mr. Robert L. Kilgo: I presume so.

I've never even -- when we have that, I have never been able to hold a defendant in South Carolina without it.

Justice Felix Frankfurter: I know you are very polite people in South Carolina but does -- do the murders inform the police before they commit the murder in South Carolina?

Mr. Robert L. Kilgo: Well, if they did, they would still get bail.

[Laughter]

Chief Justice Earl Warren: May I ask just -- well, pardon me.

Mr. Robert L. Kilgo: I beg your pardon sir.

Justice William J. Brennan: The amount available of evidence

Mr. Robert L. Kilgo: Our decisions or to this effect, on bail that must be reasonable and the Court has held at reasonable means in the amount the defendant can furnish.

Justice Felix Frankfurter: Well, that's the place we're going to --

Mr. Robert L. Kilgo: Was reasonable (Voice Overlap) --

Justice Felix Frankfurter: -- we have certain intentions, isn't it?

Justice Charles E. Whittaker: Even an indigent defendant, would that be true even in an indigent defendant?

Mr. Robert L. Kilgo: The warning and reasonable --

Justice Charles E. Whittaker: South and Alabama?

No.

Justice Potter Stewart: This man was not in large on bail or was it?

He was sent to the hospital.

Mr. Robert L. Kilgo: Yes, sir.

He -- he did not -- he did not go out in bail.

He's never applied for bail.

Justice Potter Stewart: What happens after -- after this procedure?

Is there ever a -- what in many jurisdictions, is this call a preliminary hearing?

Mr. Robert L. Kilgo: Every defendant in South Carolina is entitled with preliminary hearing on replace.

Justice Potter Stewart: But do they -- as a matter of practice, do you have on the request of them?

Mr. Robert L. Kilgo: Fairly often, sir.

Justice William J. Brennan: And as I understood the courts to -- that's not before the magistrate?

Mr. Robert L. Kilgo: The preliminary hearing is before a magistrate.

Justice Hugo L. Black: That's a justice of the peace or a judge.

Mr. Robert L. Kilgo: Yes.

Justice Potter Stewart: And has he vowed over the grand jury or what?

From the preliminary hearing.

Mr. Robert L. Kilgo: I beg your pardon.

Justice Potter Stewart: What happens after the preliminary hearing if --

Mr. Robert L. Kilgo: If he -- if he's found over -- he's found over the grand jury.

Justice Potter Stewart: Did that happen here or what that --

Mr. Robert L. Kilgo: There was no preliminary in this case.

There was no request for a preliminary hearing.

Justice Potter Stewart: So --

Mr. Robert L. Kilgo: The -- the only hearing in this case before the Court was an inquest.

Now, a preliminary hearing frankly would have served no purpose in this case because all the testimony was presented at the inquest.

Justice Potter Stewart: Well then, was there an indictment here?

Did the grand jury indict this man?

Mr. Robert L. Kilgo: Oh, yes.

The grand jury indicted him.

Justice Felix Frankfurter: Mr Kilgo, may I try to summarize what I understand to be the state position.

I do so noted that Mr. Perry deal with it, if you will.

As I understand you, you say that the sum total of examination of question non-continuously fed over a period of what, 24, 26 hours?

Mr. Robert L. Kilgo: 24 to 26 hours.

Justice Felix Frankfurter: -- six hours.

It was two and a half or two and a half hours.

Mr. Robert L. Kilgo: Two and a half hours has given him the benefit of the doubt in every aspect.

Justice Felix Frankfurter: Alright.

Anyhow, do you say not more than two and a half hours?

Mr. Robert L. Kilgo: Yes, sir.

Justice Felix Frankfurter: During that period, he was denying no amenity or no human necessity need.

Mr. Robert L. Kilgo: None, whatever.

Justice Felix Frankfurter: So far as the question of violence is concerned, you say that at -- the highest, on the petitioner's point of view, there was -- the evidence is not uncontradicted but contested.

Mr. Robert L. Kilgo: That's correct, sir.

Justice Felix Frankfurter: And -- and you say generally, he's been adding thereto and nothing else that you would be able to record it for a fundamentally fair treatment of a man charged with murder with the limitations of this man had being illiterate and at this --- that a human disadvantage is kept off in no other way or was there any in-road made upon human dignity or human feats or fatherly spiritual comfort.

Is that what you're saying?

Mr. Robert L. Kilgo: None that I know of except the sheriff did say, "Quincy, I don't believe you're telling me the truth" and he then started telling the truth.

Justice Felix Frankfurter: But -- but that was all part of the two and half hours not continuously pursued.

Mr. Robert L. Kilgo: Yes, sir.

Justice Hugo L. Black: Was part of that on the way in the car when he went with the sheriff to another place?

Mr. Robert L. Kilgo: Yes, Mr. Justice Black, he testified --

Justice Hugo L. Black: How far?

Mr. Robert L. Kilgo: -- the only way to Marion, they confessed.

Justice Hugo L. Black: How far is that?

Mr. Robert L. Kilgo: 19 miles.

Justice Hugo L. Black: 22 miles?

Mr. Robert L. Kilgo: 19 miles.

Justice Hugo L. Black: And does the record show why he was taken from one jail to the other by this period.

Mr. Robert L. Kilgo: It does not.

Justice Hugo L. Black: We have no explanation to that.

Justice Potter Stewart: The record does show if there was a crowd or mob or at least a crowd in the -- in --

Mr. Robert L. Kilgo: Jail.

Justice Potter Stewart: -- original county, in (Inaudible) doesn't it?

Justice Felix Frankfurter: And that the other jail was an empty building, was it?

Was --

Mr. Robert L. Kilgo: Yes, sir.

Justice Felix Frankfurter: -- it an empty building?

And -- and what kind of surrounding would you take judicial notice if you'll tell us.

Mr. Robert L. Kilgo: I don't want to get outside the record.

Justice Felix Frankfurter: No, but --

Mr. Robert L. Kilgo: The two jails are on the edge of Dillon.

It so happens that they had -- had just completed a new jail and they built it right beside the old jail.

And we consider that it was not in the record.

Certainly, if there had been a reason for it, the petitioner would've raised it in this case.

There -- there's no reason from -- we can't move from one jail to another except convenience, other prisoners in the jail and other people milling around.

They could go to the other building and -- and examine him without being interrupted.

Justice Hugo L. Black: When he was carried to the other jail in the car, who was with him?Who drove the car and who else was with him?

Mr. Robert L. Kilgo: To the adjoining county?

Justice Hugo L. Black: Yes.

Mr. Robert L. Kilgo: Sheriff Rogers who made the arrest, sat in the backseat with Bullock.

Another officer, one of his deputies drove and he testified that he thought one other officer rode in the front seat, three officers and the petitioner.

The petitioner occupying the same seat as the sheriff.

Justice Hugo L. Black: How long was he kept down there?

Mr. Robert L. Kilgo: In Marion?

Justice Hugo L. Black: Yes.

Mr. Robert L. Kilgo: Mr. Justice Black, he was delivered there on Friday evening and returned on Sunday evening to point out where the car was in the cemetery, from Friday evening to Sunday evening.

Justice Hugo L. Black: During that time from Friday to Sunday, did any of the officers from the place where the -- he was tried, Dillon, go down to talk to him in that jail (Voice Overlap) --

Mr. Robert L. Kilgo: The Sheriff alone testified that he went and talked with him on Saturday and talked with him on Sunday.

Chief Justice Earl Warren: Did I understand you to say that there was no reason assigned for taking him to that other county jail?

That is distance for 19 miles.

Mr. Robert L. Kilgo: There was no reason to assign.

The testimony showed that it was crowd of 200 or 300 people at the other jail.

I can't go outside the rest.

Chief Justice Earl Warren: Yes.

Justice Hugo L. Black: You -- you mean outside the other jail?

Mr. Robert L. Kilgo: Yes, sir.

Justice William O. Douglas: That's in Dillon.

Mr. Robert L. Kilgo: And the petitioner testified that he was no conscious of that.

Justice Hugo L. Black: At the -- at Dillon?

That was Dillon.

Mr. Robert L. Kilgo: Yes, sir.

Yes, sir.

Justice Hugo L. Black: What's the population of Dillon?

Mr. Robert L. Kilgo: About -- about 5000 or 6000.

Justice Hugo L. Black: What's the population of Marion?

Mr. Robert L. Kilgo: About the same.

They suggested it in the new jail in Dillon County.

There was not room -- not a room for Friday of questioning.

I know not whether that -- that that's not in the record.

In conclusion, I merely want to state and I guess I'm reiterating what I've said before.

We held this petitioner 26 hours at the most before he confessed.

We interrogated him two hours and a half.

There is no claim of anything of -- anything that he needed, no denial of truth, no denial of sleep, no unreasonable questioning, no unreasonable hours.

And as far as the record is concerned under your prior decisions, as I understand it, you have to discount his claim that he was beaten because that was contradicting.

The only uncontradict -- uncontradicted evidence is that after two and a half hours of questioning, he gave a reasonably full confession to the sheriff of Dillon County and we submit that his trial was fair in every respect and that the conviction should be affirmed.

Justice Hugo L. Black: And what -- just one other question, was that -- was the confession given immediately after getting to Marion?

Mr. Robert L. Kilgo: In the jail yard before going into jail, according to the record.

They sat in the car about 20 minutes and the sheriff testified that he then gave a reasonably full oral confession.

Justice Felix Frankfurter: To what -- help me with this.

At what point did the sheriff say or where were they and what was the -- what was the intercommunication when he said, "I don't believe you or you're not telling the truth."

Is this on the ride during the ride?

Mr. Robert L. Kilgo: That I believe was in the jail.

Justice Felix Frankfurter: In the jail, in the old jail.

Mr. Robert L. Kilgo: Well --

Justice Felix Frankfurter: Well, it was before he gave a confession or not?

To what did he say, "I don't believe you?"

Was it --

Mr. Robert L. Kilgo: I forgot in the record.

I think he -- I believe, Mr. Justice Frankfurter, he asked Bullock about the pistol -- pistol, said it and Bullock said he didn't own one and the sheriff said, "Well, I don't believe you."

That's my recollection to that record.

Justice Potter Stewart: And you suppose there was reasonably full confession.

On one stage of the game, all that was said was, if you say I've done it, I've done it.

Wouldn't that --

Mr. Robert L. Kilgo: That is not what the sheriff refers to as reasonably full confession.

He says that he first said that to him, "If you say I've done it, I've done it."

Justice Potter Stewart: Yes.

Mr. Robert L. Kilgo: He goes on and says in the great -- in the jail yard, he gave him a full oral confession.

Justice Potter Stewart: When was it that he was supposed to have said, "You -- if you say I've done it, I've done it?"

Mr. Robert L. Kilgo: I am not sure whether that is in Marion or in the courthouse in Dillon just before going to Marion, one of those two places.

Justice William J. Brennan: Well on page 114, the sheriff testified that if you ask him about that, he said, "And the answer may begin with on August 8.

If you say so, I did."

That's when the sheriff says, "When Quincy first started his confession, he answered to me in that manner for about two different times.

And I told Quincy, I said I do not want that as an answer, I want the truth.

And he later told me the truth as far as I know."

Is that what you're referring to?

Mr. Robert L. Kilgo: Yes, sir.

I believe that was on the trip to Marion.

Chief Justice Earl Warren: Thank you Mr. Kilgo.

Mr. Perry.

Argument of Matthew J. Perry

Mr. Matthew J. Perry: Mr. Chief Justice and may it please the Court.

Chief Justice Earl Warren: You maybe only have one -- one minute but you make three to four minutes more --

Mr. Matthew J. Perry: Thank you Mr. Chief Justice.

Chief Justice Earl Warren: You can limit yourself to that please.

Mr. Matthew J. Perry: Thank you very kindly, sir.

May I offer a few words of reply.

First of all, earlier, Mr. Justice Brennan asked me where in the record did it appear that the court-appointed counsel urged the absence of Jimmy Horne as a ground for continuance, and I stated that it was in the affidavit on page 8 and 9.

I was in error.

That was in the oral request for continuance on page 5 of the record.

Justice Hugo L. Black: May I ask you one question about that?

Mr. Matthew J. Perry: Yes, sir.

Justice Hugo L. Black: That was on what date?

Mr. Matthew J. Perry: The oral --

Justice Hugo L. Black: That was Monday, October 28, wasn't it?

Mr. Matthew J. Perry: I believe so.

Yes, sir.

Justice Hugo L. Black: And is that the time when Mr. Kilgo told them that they had the coroner's transcript fully written out and that it was available to the defendant?

Mr. Matthew J. Perry: Yes sir, as I understand that colloquy that --

Justice Hugo L. Black: -- when the second motion was filed.

I see that it was stated -- is that it -- it's being renewed based upon the affidavit which I now present to the Court.

Mr. Matthew J. Perry: Yes, sir.

Justice Hugo L. Black: That affidavit, as I read it, did not refer to Mr. Horne.

Mr. Matthew J. Perry: That is correct sir, and I was making that as -- as a record.

Justice Hugo L. Black: Why was -- why was that left out?

Mr. Matthew J. Perry: I am unable to say sir why that's -- why the absence of Jimmy Horne was not included in the evidence.

Justice Hugo L. Black: But it did follow the statement by the Solicitor that the coroner's evidence that that he gave for the coroner is available to you and that he had --

Mr. Matthew J. Perry: Yes, sir.

Justice Hugo L. Black: -- already made it available to the defendants.

Mr. Matthew J. Perry: Yes, sir, that is correct.

Justice Hugo L. Black: And was after that that they made a motion and did not include the absence of Horne as a reason for continuance.

Mr. Matthew J. Perry: Yes, sir.

Justice John M. Harlan: What do say about that Court of Appeals -- or the your Supreme Court's statement on 260 -- the record 264 because they said that Horne could not have been a defense witness because his full testimony was given and returned, his inquest breach from the examination thereof shows that he could not in any sense be a witness for the appellant.

The appellant does not contend that he wished to call Jimmy Horne as a witness in his behalf in order that he had mainly attempt to the same witness.

Mr. Matthew J. Perry: We say to that --

Justice John M. Harlan: (Voice Overlap)

Mr. Matthew J. Perry: -- Mr. Justice Harlan, that -- well, Horne might possibly not have been a defense witness as was pointed out by the Supreme Court.

That nevertheless, the defendant had a right to cross examine it.

And that possibly, that is -- is one reason he should have been in court.

We -- we of course --

Justice John M. Harlan: Couldn't have cross examined him if the State hasn't called him.

Mr. Matthew J. Perry: That is correct, sir.

Nevertheless, his absence from court and bearing in mind, that was -- that was received an evidence, an item, Exhibit 10, a bullet which was removed from Horne which the Court did receive.

And we contented in the court below that -- to have received the bullet into evidence without Horne being present was prejudicial to this -- the petitioner in this case.

That possibly, it was error to receive that -- that bullet in evidence without Horne being present.

That of course was the position that we took to that.

May I say that the -- that the Solicitor stated that the record shows that the petitioner has a prison record.

I submit that there is nothing in the record concerning the prisoner's past record.

The Solicitor says that precautions used in investigating this crime were extraordinary.

It is respectfully submitted that the record does not show that the State nor anybody connected with the State ever advised this petitioner of his right to counsel nor of his right to remain silent and demand a hearing.

This Court commented upon the failure of the State to do that very thing in Harris versus South Carolina.

The Solicitor says that interrogation is necessary to law enforcement.

Well, that maybe true, we urge the Court that as Mr. Justice Frankfurter said in Watts versus Indiana, "Ours is the accusatorial system and not the inquisitorial system."

The State, when it arrested Bullock, did not prefer to charge a crime against him but used his incarceration to ring from him the confession of this case.

Justice Felix Frankfurter: But you're not suggesting or either that no statement made by the prisoner while in custody of the police is constitutionally admissible.

You do not take that position.

Mr. Matthew J. Perry: No, sir, I do not take that position.

Justice Felix Frankfurter: After it gets down to the circumstances of the particular situation in this case.

Were as the statement that was made and may fairly be called -- be fairly be rejected as not being voluntary in a -- in an ordinary sense of the term that ordinary people understand it voluntary, something that's spontaneously invoked instead of -- instead of being compulsorily evoked.

Mr. Matthew J. Perry: Yes, sir, we do and we urge the totality of all of the circumstances which we have urged in this case.

Thank you very much Mr. Chief --

Chief Justice Earl Warren: Gentlemen, before you leave your seats, I should like to express appreciation of the Court to both sides for the frank and courteous and helpful manner in which the issues have been presented.

Mr. Matthew J. Perry: Thank you very much.

Rebuttal of Robert L. Kilgo

Mr. Robert L. Kilgo: It's quite an honor.

It's a pleasure sir.