Raymond Lisenba (1895 –
May 1, 1942),
also known as Rattlesnake James or Robert S. James, was
the last man to be executed by hanging in California.
James worked as a barber in the area of present
day La Cañada Flintridge, California in the 1930s. His wife in
those years was a manicurist named Mary Busch. In 1935, James
purchased a life insurance policy on his wife. A few months later,
James purchased rattlesnakes, which were used in an unsuccessful
attempt to murder his wife. Hours later, Mary was found dead by
Investigators discovered that James had been married
previously and that one of his prior wives had died under similar
May 1, 1942,
Rattlesnake James was executed by hanging at San Quentin State Prison in
California. The rope was the wrong length and it took over ten minutes
for Rattlesnake James to die.
Robert James alias Raymond Lisemba
A few weeks after his wife had been badly injured in
a car crash Robert James reported more bad news to police in Colorado
Springs: “My poor wife has drowned in the bathtub. She must have been
dizzy from the car crash and slipped unconscious beneath the water.”
The car crash had been significantly unusual in that
James, the driver, was completely unhurt. Investigators had noted a
bloody hammer in the back of the wrecked car but apparently took no
notice of it.
Mrs. James’ subsequent death in the bath was written
off as “accidental drowning,” and James, a barber, collected $14,000 on
her life policy and went off to Alabama to marry again – for the fourth
time. When his new wife learned that he wanted to take out life
insurance on her she said, “People who get insured always die of
something strange,” and divorced him.
James next called up his accident-prone nephew,
Cornelius Wright. He took out an insurance policy on the youngster’s
life, invited him to a visit while on leave from the US Navy, and gave
him the use of his car. Wright promptly drove off a cliff, killing
himself. A mechanic later told James that something was wrong with the
In Los Angeles James met and married tall, blonde,
26-year-old Mary Busch. In 1935, after he insured her life, the couple
discovered she was pregnant. Mary insisted on an abortion, so James
persuaded a friend, Charlie Hope, to pose as a doctor. In the meantime
the two men somehow procured two rattlesnakes. Hope arrived at the house
to find that James had blindfolded his wife and tied her to the kitchen
They poured whisky down her throat, telling her it
would dull the pain, stuck her feet into the box containing the snakes,
and left her to die.
But she didn’t die. When James came home from work
she was still alive. Charlie Hope later testified that James then
drowned her in the bath, dragged her to a lily pond in the garden, and
left her face down in the water to be “accidentally” discovered the next
Police believed that Mary had got drunk and had
drowned herself, but subsequently James (now calling himself Major
Raymond Lisemba) was arrested for a different crime. Police checked his
background and found out enough to charge him with Mary’s murder. At the
trial Hope helped demonstrate how Mary’s feet were introduced into the
On Saturday, May 9th, 1942, James became the last man
to die on the gallows in California. It was a botch job – it took more
than 10 minutes for him to die at the end of the rope.
On March 22, 1939, a former Fargo
barber learned he would be hanged for his most recent wife’s murder. She
was his last victim, but not his first; his first was Winona Wallace, of
Raymond Lisemba was born to Alabama
sharecroppers in 1895 and was living the life of a cotton picker when he
learned he was the sole beneficiary of his uncles’ $4,000 life insurance
policy. Lisemba moved to Birmingham, changed his name to Robert James,
and went to barber college. At age 26, he married Maud Duncan, who
quickly divorced him for sadistic cruelty.
James moved to Kansas, opened a
barbershop and married again. Things worked out until a stranger came at
him with a shotgun for getting his young daughter pregnant. James
skipped town, leaving his wife behind. He moved to Fargo in 1932, bought
another barbershop and married a Fargo woman, Winona Wallace. He
immediately took out a life insurance policy on her, and three months
later, they went to Pike’s Peak for their honeymoon.
In 1941, a legal document in Lisemba
vs. People stated: “...while driving down Pike’s Peak, their automobile
went off the road. James went for aid. When the persons called upon
reached the automobile they found James’ wife lying partly outside the
car with her head badly crushed and a bloody hammer in the back of the
car. James appeared unhurt.”
Winona recovered after two weeks in
the hospital, and the couple stayed in a tourist cabin near Colorado
Springs. Jay Robert Nash, author of Bloodletters and Badmen, writes,
“...a short time later James arrived at a police station to report that
his poor wife had drowned in a bathtub. He explained that she must have
still been dizzy from the mountain mishap and slipped unconscious
beneath the water.”
James collected a $14,000 insurance
settlement and headed back to Alabama to marry wife number four. When
she learned he wanted to take out life insurance on her, she said,
“People you insure always die of something strange,” and divorced him.
His next victim was his accident-prone
nephew, Cornelius Wright. James took out insurance on the young sailor,
invited him to visit while on leave, and gave him the use of his car.
Nash writes, “Wright promptly drove off a cliff, killing himself. The
mechanic who towed the wreck back to James told him that something was
wrong with the steering wheel...”
James next opened a large barbershop
in Los Angeles, where he insured and then married a tall, blond, 26-year-old
manicurist named Mary Busch. In 1935, James and a friend, Charlie Hope,
procured two rattlesnakes, and for half the life insurance, Hope helped
James kill Mary. Mary was pregnant and allegedly wanted an abortion, so
James had Hope pose as a doctor who could help her out. Hope arrived at
the house to find James had blindfolded Mary and tied her to the kitchen
table. They reportedly gave her whiskey so she wouldn’t feel anything
and then stuck her foot into a box containing the snakes. They left her
to die, but when James came home, Mary was still alive. Hope testified
that James then drowned her in the bathtub, dragged her to a lily pond
in the back yard, and left her face down in the water to be
“accidentally” discovered the next day.
Police first believed Mary had gotten
drunk and accidentally drowned. But a few months later, James – now
going as Major Raymond Lisemba – was arrested on a different crime. A
subsequent investigation finally landed him in San Quentin for Mary’s
murder. On May 9, 1942, he was the last man to die in the gallows in
California. Unfortunately for Robert James, the hanging was poorly
maneuvered; it took more than ten minutes for him to die.
Sources: People v. Lisenba (14
C2d 403), October 5, 1939; Lisenba v. People of State of California (314
US 219), December 8, 1941; Jay Robert Nash, Bloodletters and Badmen,
1995; Fargo Forum, March 22, 1939.
Ray Lisenba’s wives had the worst luck.
It’s unusual enough to be injured in a car
wreck; it’s even more bizarre to die just a few days later in the
bathtub. That was how the first Mrs. Lisenba met her death. Imagine how
shocked Ray’s friends were when just a few years later, the second Mrs.
Lisenba would be bit by a rattlesnake in her garden and fall into her
goldfish pond and drown.
Fortunately, the Southern California
barber had life insurance policies on his wives. That must have made the
sting of fate seem a little less cruel.
His scams might have worked, but Ray tried
to get too cute and that brought the attention of the investigators. In
the end, all Ray got was an exclusive seat in the gas chamber.
In 1932, Ray Lisenba met Winona Wallace in
Colorado and the two became engaged. After a brief courtship, Ray and
Winona wed and subsequently met with C.A. Pries, an insurance salesman
from Prudential Life who set the young couple up with a pair of $5,000
insurance policies. The Lisenbas kept Winona’s policy current (it
carried a double indemnity clause for accidental death), but after three
months, let Ray’s lapse.
On September 21, 1932, the happy couple
was driving over Pikes Peak Highway near Glen Cove, Colorado. Ray was
looking out the window with binoculars and Winona was driving when the
car suddenly left the road, Ray told the investigators who came across
the accident scene.
Ray told police that as the car tumbled
down the mountainside he managed to jump free about 50 feet from the
road way. Unfortunately, Winona, trapped in the vehicle, rode it all the
way down until it stopped against a large boulder, about 150 feet below
When rescuers got to the scene, they found
Winona still alive on the right hand side of the car with her feet on
the running board and her head pointing down the hill. For someone who
had been in a tremendous wreck, she was in relatively good shape. Her
clothes were free of dirt, but there was a lot of blood in the car,
especially on the passenger’s side and floorboard. She also smelled of
liquor and had a massive wound behind her ear.
Winona was released from the hospital on
October 8, and was recovering at a cottage in Manitou Springs when about
a week later, Ray asked the local grocer to deliver some groceries to
their cabin. He also begged a ride home with the delivery man. When they
entered the cabin, they found Winona lying on her back in a half-filled
tub of lukewarm water.
At the coroner’s inquest, medical examiner
George B. Gilmore testified that Ray told him that his wife had
apparently ignored physician’s orders to avoid washing her hair because
of the head wound and had drowned as a result.
Prudential eventually paid off on Winona’s
policy. It wasn’t until the second Mrs. Lisenba had an accident that
anyone bothered to perform an autopsy on the unlucky first wife. At that
time, the medical examiner testified that she suffered fractures of the
skull from two blows, one on the side and the other on the front of the
head; that the fractures had been caused by a hard, moving object being
projected against the head and not by the head being projected against a
hard, stationary object; and that the blow on the side of the head had
been received first.
Why the first Mrs. Lisenba never raised an
alarm after the car accident is unknown.
Regardless, three years later in March
1935, Ray was operating a barbershop when he met Mary Emma James, who
would become his second wife. Ray had been hanging around with Charles
Hope when one day in June 1935, Ray asked Charles if he knew anything
about rattlesnakes. Ray went on to say that he “had a friend” who had a
wife he wanted to kill and wanted to use rattlers as the weapon.
Apparently, Charles knew someone who
handled rattlesnakes, because Ray offered him $100 plus expenses for
A few days later, Charles dropped off
three rattlesnakes and purchased wood-and-glass containers for them.
However, in early July, Ray indicated that the man was not happy with
the snakes because they were too mellow. The man needed snakes that were
Charles and Ray headed over to the Ocean
Park Snake Pit, and on August 3, 1935, two days before Mary Emma would
be murdered, a snake handler named Joe Houtenbrink, aka “Snake Joe,”
delivered a pair of nasty rattlers that he thought were going to be used
to settle a bet (Could a rattlesnake kill a dog or would the dog take
out the snake was the ruse, apparently).
As if the strange case of Ray Lisenba
could not get any weirder, it did.
Charles brought the snakes to Ray on
August 4, only to find Mary Emma, who was pregnant at the time, dressed
in her nightgown, strapped to the kitchen table. Her eyes and mouth had
been taped shut by Lisenba.
Ray told Charles that he managed to get
his wife on the table by telling her a doctor was coming to “perform
some kind of operation on her for pregnancy.”
Charles watched as Ray put Mary Emma’s
foot in the box with the two snakes and the serpents bit the woman. He
then left the house, returned the snakes to “Snake Joe” and picked up
Returning to the house at at 1:30 a.m.,
August 4, Charles found Ray in quite a state. The snakes were no good,
Ray told him. Mary Emma wasn’t even sick.
Ray had been drinking, and he decided that he was going to drown his
Ray emerged from house about 4 a.m.,
telling Charles, “That’s that.”
Charles left, telling Ray that he still
expected to paid the $100 for getting the snakes.
That evening, Ray invited Viola and James
Pemberton over to have dinner. They entered the house, but didn’t see
Mary Emma. Ray suggested looking for her in the garden.
Grabbing flashlights, they headed out
back. James Pemberton found Mary Emma face down in the fish pond. Her
left leg looked black and swollen.
Police were summoned and the grieving
husband was advised that his poor wife had apparently been bitten by a
rattlesnake and in her shock, she had fallen into the pond and drowned.
A $5,000 insurance policy with double
indemnity would help assuague his pain.
Things would have gone unnoticed if
Lisenba had not been suspected of sleeping with his niece, which under
California law at the time was a felony offense. He was arrested and
charged with incest on April 19, 1936.
The police must have known they were
dealing with a b Apparently, the cops gave Ray a bit of the
After some preliminary questioning in the office of the district
attorney, he was taken by the officers to a private home, adjoining that
where the defendant had been living with his niece, and where admittedly
he was held incommunicado for a period of about forty-eight hours,
during all of which time he was admittedly subjected to incessant
questioning by the officers who worked in shifts. The defendant was
apparently deprived of rest and sleep during practically all of such
Apparently, during this
questioning, authorities “uncovered and developed the criminal
character” of Mary Emma’s death a few months before.
However, Ray held out and it
wasn’t until May 3, 1936 that he confessed to the plot to kill his
According to Ray, he and Charles
had planned to kill Mary Emma for the insurance money, but when the
snakes failed to work, Ray left the scene and told Charles to fix it by
burning downing the house. Unfortunately, Charles opted to drown the
victim, which Ray said was the worst thing he could have done (since the
first Mrs. Lisenba died that way) and that now they had to figure
something else out.
Fortunately, by this time the
snakebite had taken hold and was beginning to discolor the corpse’s
foot. That’s how the two of them figured out to put her in the fish
pond, where her husband and the dinner guests found her.
For their troubles, Ray Lisenba
received the death penalty and Charles Hope was sentenced to life in
The United States
Supreme Court expressed some curiosity about the Third Degree Ray
received, but in the end decided it wasn’t enough to spare his life.
Robert S. James, the red-haired 'rattlesnake killer'
He was executed by the State of California on May 1,
1942 (in what was probably the last execution by hanging in California)
for the murder of his wife Mary, on August 4, 1935.
The crime was especially heinous. James tied
his wife to a chair and thrust her leg into a box containing two
rattlesnakes, who promptly bit her. When the snake venom failed to
kill his wife, James drowned her in the bathtub, then dragged her body
to a fish pond, to make her death appear accidental. The apparent
motive for this was $20,000 in life insurance coverage on Mary.
At the time of her death, authorities were uncertain
as to whether Mary was James' fifth, sixth or seventh wife.
The murder and its aftermath -- which was appealed
all the way to the U.S. Supreme Court -- was widely covered in the press.
I've included below excerpts from some of the key articles appearing in
the Los Angeles Times. Due to copyright restrictions, I cannot
reproduce the full text of the articles, but a librarian should be able
to assist you in obtaining full copies if you so desire.
JAMES PAYS WITH LIFE IN WIFE KILLING
Los Angeles Times
May 2, 1942
Former Barber Hanged at San Quentin for ?Rattlesnake
Robert S James, 48-year-old 'rattlesnake killer',
mounted the 13 steps to the hangman?s noose and death on the San Quentin
With Charles Hope, ex-sailor, and hot-dog stand
operator, as his accomplice, he bound his bride of three months to a
breakfast table... taped shut her mouth and eyes... then he thrust her
bare leg into a box containing two 'hot' diamond-backed rattlesnakes.
His conviction was upheld twice by the State
Supreme Court and once by the United States Supreme Court.
James was born Major R. Lisenba in Birmingham, Ala.
He served in the Army during the first World War as a private, using the
name of 'Davis'.
In the two years he spent on San Quentin's
condemned row, James became very religious... the other convicts called
him 'Holy Joe'.
He willed his possessions... to his sister, Mrs Eva
Murphy of Birmingham, who claimed his body...
HIGHEST COURT REFUSES TO SAVE JAMES
Conviction Sustained in Rattlesnake and Drowning
Los Angeles Times
April 8, 1941
Although the decision of the highest court in the
land sustained the verdicts of three California courts, counsel for
James announced he would open another chapter in the long fight to save
the red-haired barber... by filing a petition for a rehearing.
Attorney Morris Lavine announced that he also would
appeal for a stay of execution...
Lavine based his plans... on the ground that the
Supreme Court voted 4 to 4 on the question of a fair trial for
...the 4-to-4 decision... gave James a slim chance at
the most to gain a rehearing unless the ninth justice was appointed
within about 40 days...
James faces the gallows for the death of his wife...
because the crime was committed before the passage in 1937 of the law
decreeing execution in California by gas instead of hanging.
...his counsel charged that James had not been given
a fair trial because [of] ...a 48-hour questioning; that two
rattlesnakes...had been brought into the courtroom to 'frighten and
prejudice the jury' and that evidence regarding the death of a former
wife...was improperly presented...
two rattlesnakes nicknamed 'Lightning' and 'Lethal'.
JAMES CONVICTED AND FACES NOOSE IN SNAKE MURDER
Wife-Slaying Defendant Stoically Declares "I can Take
It" as He Hears Fateful Verdict
Los Angeles Times
July 25, 1936
Robert James, the barber, received the hanging
verdict last night for the rattlesnake murder of his wife.
'We find the defendant, Major Raymond Lisenba, also
known as Robert James, guilty of murder in the first degree'.
Ten yards away at the side of Policewoman Marjorie
Fairchik, Jame's niece, Lois Wright, arrested with him in a morals raid,
James put his hand on Parson?s [NOTE: his lawyer]
knee and said: 'I want to thank you Russell, for all you've done'.
'We're not through yet', said Parsons.
Silverman [NOTE: James' other lawyer] said he will
base his appeal on two principal points -- that introduction of live
rattlesnakes... inflamed the ...jury; that testimony... that James
murdered a previous wife... by bathtub drowning, was inadmissable.
...James stood to collect more than $21,000 on the
death of Mary Busch James...[when] he tried to kill her first by
rattlesnake... and... [then] drowned her in the bathtub of their La
U.S. Supreme Court
314 U.S. 219
PEOPLE OF STATE OF CALIFORNIA.
Nos. 4 and 5.
Reargued Oct. 14-15, 1941.
Decided Dec. 8, 1941.
Rehearing Denied Feb. 2, 1942
Mr. Justice ROBERTS delivered the opinion of the
The petitioner was convicted of murder and sentenced
to death in the Superior Court of California for Los Angeles County. The
Supreme Court of California, affirmed the judgment March 21, 1939, two
judges dissenting. 1 A rehearing was granted,
the case was reargued and, October 5, 1939, the decision was reaffirmed
and the former opinion adopted and amplified, two justices dissenting.
2 No question arising under the Constitution
of the United States had been raised or decided. In a second petition
for rehearing the petitioner, for the first time, asserted that his
conviction violated the Fourteenth Amendment. November 3, 1939, the
Court ruled: 'The petition for a rehearing herein is denied.'
The Chief Justice of the State allowed an appeal
November 6, 1939, and November 8, 1939, executed a certificate in which
he enumerated the constitutional questions presented by the second
petition for rehearing; stated that the court entertained the petition,
and explicitly overruled each of the contentions made therein; certified
that the decision denying rehearing 'is to be interpreted and considered
as holding against the appellant's contention that his rights under the
Fourteenth Amendment to the Constitution of the United States ... were
violated'; and concluded: 'It ordered that this certificate be filed in
this court and made part of the record on appeal to the Supreme Court of
the United States.' On the record so made this Court has jurisdiction to
review the judgment. 3
The appellant did not draw in question the
constitutional validity of any statute of California. We, therefore,
dismissed the appeal4 but, treating the papers as a petition for
certiorari,5 we granted the writ. This case is No. 4.
October 31, 1939, the petitioner prayed the Supreme
Court of California for a writ of habeas corpus on the theory that his
trial and conviction had deprived him of his life without due process.
He submitted affidavits of one Hope, who had turned state's evidence
against him. In these Hope asserted that his testimony was false, had
been coerced by threats and induced by promises of leniency and by fraud.
November 9, 1939, habeas corpus was denied, without
prejudice. The Chief Justice of California allowed an appeal and made,
and ordered filed of record, a certificate respecting the constitutional
questions presented and decided by the court, similar to that entered in
No. 4. We followed the same course as in No. 4 and the case is here as
The appeals were presented in forma pauperis. The
typewritten record is of great length. In the belief that only by briefs
and oral argument, and on a record printed by the court, could proper
consideration and decision be had of certain apparently important
questions presented, we issued the writs. The cases were argued at the
October 1940 term, and the judgments were affirmed by a divided Court. A
petition for rehearing before a full Court was granted, the affirmances
set aside, and the causes set for rehearing at this term.
The petitioner, who used, and was commonly known by,
the name of Robert S. James (and will be so called), and one Hope were
indicted May 6, 1936, for the murder of James' wife on August 5, 1935.
Hope pleaded guilty and was sentenced to life imprisonment. James
pleaded not guilty, was tried, convicted, and sentenced to death. The
trial was a long one in which the petitioner made objections to rulings
and to the charge, which raise questions of state law decided by the
opinion below, with which we have no concern. We shall refer only to so
much of the evidence as bears upon the constitutional questions open
The State's theory is that the petitioner conceived
the plan of marrying, insuring his wife's life by policies providing
double indemnity for accidental death, killing her in a manner to give
the appearance of accident, and collecting double indemnity.
James employed Mary E. Busch as a manicurist in his
barber shop in March, 1935, and, about a month later, went through a
marriage ceremony with her, which was not legal as he then had a living
wife. While they were affianced, insurance was negotiated on her life,
with James as beneficiary. Upon the annulment of the earlier marriage a
lawful ceremony was performed. The petitioner made sure that the
policies were not annulled by the fact that when they were issued Mary
had not been his lawful wife.
The allegation is that James enlisted one Hope in a
conspiracy to do away with Mary and collect and divide the insurance on
her life. Hope testified that, at James' instigation, he procured
rattlesnakes which were to bite and kill Mary; that they appeared not to
be sufficiently venomous for the purpose but he ultimately purchased
others and delivered them to James; that James, on August 4, 1935,
blindfolded his wife's eyes, tied her to a table, had Hope bring one of
the snakes into the room and caused the reptile to bite her foot; that,
during the night James told Hope the bite did not have the desired
effect and, in the early morning of August 5, he told Hope that he was
going to drown his wife; that later he said to Hope, 'That is that', and
still later, at his request, Hope aided him in carrying the body to the
yard, and James placed the body face down at the edge of a fish pond
with the head and shoulders in the water.
James was at his barber shop on August 5. On that
evening he took two friends home for dinner. When they arrived the house
was dark and empty, and, upon a search of the grounds, his wife's body
was found in the position indicated. An autopsy showed the lungs were
almost filled with water. The left great toe showed a puncture and the
left leg was greatly swollen and almost black. Nothing came of the
investigation of the death.
James attempted to collect double indemnity; the
insurers refused to pay; suits were instituted and one of them settled.
As a result of this activity, a fresh investigation of Mary James' death
was instituted. On April 19, 1936, officers arrested James for the crime
of incest. He was booked on this charge on the morning of April 21, was
given a hearing and remanded to jail. On May 2 and 3 he made statements
respecting his wife's death to the prosecuting officials.
At the trial, in addition to that of Hope, testimony
was adduced as to the finding and condition of the body, other evidence
to connect James with the death, and expert testimony that the condition
of the left leg could be attributed to rattlesnake bites. The purchase
of snakes by Hope was proved by him and several other witnesses one of
whom said he sold the two snakes to Hope, one of which Hope claimed had
bitten Mary James. Two snakes were brought into court which the witness
identified as those sold to Hope and by Hope resold to the witness.
James' statements were offered in evidence. Objection
was made that they were not voluntary. Before they were admitted the
trial judge heard testimony offered by the State and the defendant on
that issue. He ruled that the confessions were admissible, and they were
received in evidence.
The State offered evidence with respect to the death
of a former wife of James in 1932. This tended to prove that, while
driving down Pike's Peak, their automobile went off the road. James went
for aid. When the persons called upon reached the automobile they found
James' wife lying partly outside the car with her head badly crushed and
a bloody hammer in the back of the car. James appeared unhurt. The woman
recovered from her injuries but, shortly afterwards, was discovered by
James and another man drowned in the bathtub in a house James had
temporarily leased at Colorado Springs. James collected double indemnity
from insurance companies for her death, the insurance having been placed
at about the time he married her and her death having occurred within a
few months thereafter.
This evidence was admitted over objection and, at the
close of the State's case, defendant's counsel moved for an adjournment
so that they might take depositions of witnesses in Colorado. The court
refused the application for want of a sufficient showing.
The petitioner's contentions, based upon the
Fourteenth Amendment, are: that the conduct of the prosecuting officials
and police officers denied him the equal protection of the laws; that
his conviction deprived him of his life without due process, because the
testimony of Hope, an accomplice, was not corroborated as required by
the Penal Code of California and was, therefore, insufficient to sustain
a conviction; because Hope's affidavits filed since the trial showed
that his testimony was obtained by deceit, fraud, collusion, and
coercion and was known to the prosecutor to be false and hence the trial
was a mere pretense; because the alleged occurrences in Colorado were
wholly disconnected from the crime charged and petitioner was afforded
no opportunity to answer the State's evidence respecting them; because
the production of the rattlesnakes in the court was solely for the
purpose of inflaming the jury; and because physical violence, threats,
and other coercive means produced the confessions, and denial of
requested opportunity to consult counsel preceded and accompanied their
First. The contention that illegal conduct on the
part of the State's officers deprived petitioner of the equal protection
of the laws hardly needs notice. The claim is that where officers
violate the law so that some defendants are treated as was petitioner,
and others are treated as the law requires, inequality and
discrimination results which denies equal protection. The contention is
frivolous. The record is bare of any proof to support it.
Second. The petitioner asserts that Hope's testimony
was not corroborated. Under California law, the uncorroborated testimony
of an accomplice is not sufficient to sustain a conviction.
7 Petitioner contends that, in consideration
of Hope's confessing and turning state's evidence, leniency was extended
him by the court. Petitioner says that Hope's affidavits show that the
prosecuting officials well knew that Hope's testimony was a fabrication;
that he was persuaded so to testify by fraud, promises of leniency and
threats, and the trial was a mere sham. 8
These contentions need but brief notice. The
Fourteenth Amendment does not forbid a state court to construe and apply
its laws with respect to the evidence of an accomplice. There is no
adequate showing that there was a corrupt bargain with Hope, and the
practice of taking into consideration, in sentencing an accomplice, his
aid to the state in turning state's evidence can be no denial of due
process to a convicted confederate. Hope's affidavits not only were
prepared after the State Supreme Court had passed upon the case and its
opinion had been published but after the lapse of nearly three years
from the trial. They could, therefore, be considered only in the habeas
corpus case. The State contends that it had no opportunity to answer
them. This is contested by the petitioner. In any event, it was
stipulated that the record on appeal in the other case should be part of
the record on the habeas corpus hearing; and comparison of the testimony
at the trial with the allegations of the affidavits raises serious
doubts as to their truthfulness. The appraisal of the conflicting
evidence was for the court below. Even if its refusal to believe Hope's
depositions were erroneous, the error would be no more a denial of due
process than was its approval, on appeal, of the trial judge's refusal
to direct a verdict on the ground of insufficiency of evidence.
Third. Testimony was admitted concerning the death of
James' former wife, on the widely recognized principle that similar but
disconnected acts may be shown to establish intent, design, and system.
9 The Fourteenth Amendment leaves California
free to adopt a rule of relevance which the court below holds was
applied here in accordance with the State's law.
The insistence that the trial judge's refusal to
grant a continuance, so that petitioner could take answering depositions,
was a denial of due process goes even farther afield. Counsel had notice
at the opening of the trial, or shortly thereafter, that the State
intended to introduce evidence on this subject,-but waited until the
State had rested before asking the continuance. Even then the showing
was inadequate as to the identity of the witnesses and the nature of the
expected evidence. The judge, in the exercise of his discretion, denied
the motion. The Fourteenth Amendment gives this Court no mandate to
review his action or inquire whether he abused his discretion in such a
Fourth. A part of the State's case was that Hope had
purchased snakes and brought them to the petitioner in pursuance of the
conspiracy. Two snakes were brought into the courtroom to be identified
by the witness who said he sold them to Hope. The petitioner says that
the sole purpose of the production of the snakes was to prejudice the
jury against him and that those in the courtroom, including the jury,
were in a panic as a result of the incident. For this he cites current
newspaper accounts and affidavits of his counsel. The State denies any
improper purpose and, to rebut the assertions of petitioner, relies on a
counter-affidavit and a statement by the trial judge. The record
discloses that at a subsequent state of the trial the snakes were
brought into court at the defendant's request.
We do not sit to review state court action on
questions of the propriety of the trial judge's action in the admission
of evidence. We cannot hold, as petitioner urges, that the introduction
and identification of the snakes so infused the trial with unfairness as
to deny due process of law. The fact that evidence admitted as relevant
by a court is shocking to the sensibilities of those in the courtroom
cannot, for that reason alone, render its reception a violation of due
Fifth. The important question is whether the use of
the confessions rendered petitioner's conviction a deprivation of his
life without due process of law. Recital of the relevant facts is
essential to a decision.
The petitioner, while having almost no formal
education, is a man of intelligence and business experience. After his
arrest, on the charge of incest, on the morning of Sunday, April 19,
1936, he was taken for a short time to the adjoining house and shown a
dictaphone there installed. He was brought to the District Attorney's
offices where he was lodged in the Bureau of Investigation. He says that
during the two or three hours he stayed there he was not questioned. He
was taken into an office where the District Attorney showed him a
statement made by a Miss Wright respecting the incest charge and asked
him what he cared to say about it. He replied that he would not talk
about it. He was questioned for about an hour. He says he was asked
about his wife's death; others who were present deny this.
He was held in the District Attorney's suite until 5
or 6 o'clock, was given supper at a cafe, and then conducted to the
house next door to his home, where he arrived about 7 or 7:30. Various
officers questioned him there in relays throughout the night concerning
his wife's death. He sat in a chair fully dressed and had no sleep.
Monday morning he was taken out for breakfast and went with the officers
to point out to them a house at 9th and Alvarado Streets, after which he
was taken to the District Attorney's offices. He was brought back to the
house next door to his home and the questioning was resumed, and
continued until about 3 o'clock Tuesday morning when, he says, he
fainted, and others present say he fell asleep and slept until 7 or 8
o'clock. After he had breakfasted he was booked at the jail, arraigned
before a magistrate, and committed on the incest charge.
James testified that about 10 P.M. Monday, April 20,
the officers began to beat him; that his body was made black and blue;
that the beating impaired his hearing, and caused a hernia; that later
that night an Assistant District Attorney questioned him and that, after
this ordeal, he collapsed. It is admitted that an officer slapped his
face that night. This is said to have occurred as the result of an
offensive remark James made concerning his wife; he denies having made
In corroboration of James' testimony two witnesses
said they noticed that one or both of his ears were bruised and swollen
when he was lodged in the jail. All of this testimony is contradicted by
numerous witnesses for the State, save only that it is admitted James
was repeatedly and persistently questioned at intervals during the
period from Sunday night until Tuesday morning. It is testified that,
except for the one slap, no one laid a hand on James; that no inducement
was held out to him; that no threats were made; that he answered
questions freely and intelligently; and that he was at ease, cool, and
collected. He admits that no promises or threats were made or
maltreatment administered on the occasions when he was in the District
Attorney's office. It is significant that James stated to one of the
other officers that Officer Southard had slapped him and that when, May
2, the District Attorney asked how he had been treated he again referred
to the slap. In neither case did he say anything of any other
mistreatment. During the period April 19-21 James made no incriminating
admission or confession.
James says that shortly after his arrest on Sunday
morning he asked, and was refused, permission to get into touch with Mr.
Silverman, who had been his attorney for a number of years. This is
denied. There is evidence that he saw Mr. Silverman on Monday, April 20,
at the District Attorney's office. Mr. Silverman testified that he saw
the petitioner immediately after his formal arrest; that he was with the
petitioner at the arraignment on Tuesday, April 21st; and again on April
25th in the jail. It is not suggested that James was not allowed to see
his attorney as often as he desired or that any obstacle was interposed
to the attorney's interviewing him between April 21 and May 2.
There is no claim that from April 21, when he was
lodged in the jail, until May 2, he was interviewed, questioned,
threatened, or mistreated by anyone. During this period his attorney
told him that he would be indicted for his wife's murder and should not
answer any questions unless his attorney was present.
May 1, Hope was arrested and made a statement. On the
morning of May 2, James was brought from his cell to the chaplain's room
in the prison and confronted with Hope. An Assistant District Attorney
outlined Hope's story and asked James whether he had anything to say, to
which he replied: 'Nothing'.
He went back to his cell and, about noon, an order of
court was obtained to remove him from the prison. He was taken to his
former home by two deputy sheriffs. The evidence does not disclose
clearly either the purpose or the incidents of this trip. He was then
brought to the District Attorney's office and that official began to
question him. He requested that his attorney be sent for. In his
presence a telephone call was made which disclosed that Mr. Silverman
was not in Los Angeles. He asked that another attorney be summoned. He
states that the District Attorney said it would take too long to
acquaint any other attorney with the facts; others say that James did
not give the name of the other attorney he wanted and it took some time
to discover whom he had in mind. The attorney was not summoned.
The District Attorney and, at times, others
questioned James until supper time. Sandwiches and coffee were procured.
James says he had coffee but someone took his sandwiches. There is
testimony that he had them. The questioning, based on Hope's confession,
was continued into the night without James having refused to answer
questions or having made any incriminating answers.
There is a sharp conflict as to how the session
terminated. James says that Officer Southard, who had struck him on
April 20, occupied the room alone with him, all others having left; that
the officer told him he had been lying all evening and that if he did
not tell the truth the officer would take him back to the house and beat
him; that this so frightened him that he agreed to do his best to recite
to the District Attorney the same story Hope had told.
There is much evidence that no such incident occurred.
Deputy Sheriff Killion says that sometime before midnight the others had
left petitioner alone with him and that petitioner turned to him and
said something to the effect: 'Why can't we go out and get something to
eat; if we do I'll tell you the story.' To this Killion replied that
they could go out. Killion and another Deputy Sheriff, Gray, a lady
friend, and another person accompanied petitioner to a public cafe where
they had a supper and afterwards had cigars. James testified that
neither Killion nor Gray nor the District Attorney ever laid hand on him,
threatened him or offered him any inducement to confess.
The State's evidence is that after they started to
smoke James told a story of which Killion took notes. Killion narrated
at the trial what James had told him. The party returned to the District
Attorney's office and there, responding to a question by the District
Attorney, James said he had told Killion the story and, in answer to
questions, he repeated that story. The interview was stenographically
recorded. Most of the questions were asked by the District Attorney,
some few by Killion and one or two other officers who were present. The
group seems to have consisted of the District Attorney, an Assistant
District Attorney, two officers, the two deputy sheriffs, and the
Hope's statement laid on James the initiation of the
murder plot, the attempt to consummate it with snake poison, the
drowning and the disposition of her body. The account James gave Killion
and the District Attorney, which he now says was an attempt to retell
the tale Hope had told, which had been constantly dinned into his ears,
is by no means a reiteration of Hope's story.
On the contrary, James insisted that Hope suggested
the destruction of Mary James, and the rattlesnake expedient, which Hope
carried out; that when this failed Hope suggested that he, Hope, burn
down the house to make it appear that Mrs. James died by accident, and
that Hope also volunteered to commit an abortion on Mrs. James and also
to do away with her. James asserted that, while he was absent from his
home on the morning of August 5, 1935, Hope drowned his wife in the
bathtub and told James that he had done so.
It is also to be noted that James' statement presents
a lurid picture of the heavy drinking and intoxication of Hope, James,
and Mary James during the three days anterior to the death of the latter.
The effort evidently was to suggest that all were more or less
irresponsible for their actions.
If Hope's story is true, James planned and
accomplished the murder of his wife to obtain the insurance on her life.
If James' statement is true, Hope planned the murder, James desired to
abandon the scheme and thought that all Hope ultimately intended to do
was to commit an abortion on James' wife and was shocked and surprised
to learn that Hope had murdered her.
James said during supper at the cafe, and stated on
another occasion, that there were not enough men in the District
Attorney's office to make him talk, and if Hope had not talked he would
never have told the story.
Scrutiny of the two statements indicates that James
carefully considered what Hope had said and made up his mind to tell a
story consistent with his intimacy with Hope, and with various incidents
James could not deny, and then depict a drunken orgy as a result of
which his will power was so enfeebled that he could not resist Hope's
determination to make away with Mrs. James.
At the trial James contradicted the essential
particulars of Hope's testimony and most of his own confession,
including the evidence respecting the snakes. He swore all Hope was to
do was to attempt an abortion; he believed Hope did not accomplish this
and his wife died as a result of falling into the pond in a fainting fit
due to her pregnancy.
The evidence as to the treatment of James and the
conduct of officials and officers from the moment of his arrest until
the close of his statement to the District Attorney was heard
preliminarily by the trial judge in order to determine whether the State
had, as required by California law, carried its burden of proving the
confessions voluntary. The ruling was that it had and the confessions
were admitted. The trial judge, at defendant's request, charged the jury,
in accordance with the State law, that the confessions must be utterly
disregarded unless they were voluntary, that is, not the result of
inducements, promises, threats, violence, or any form of coercion.
The failure of the arresting officers promptly to
produce the petitioner before an examining magistrate, their detention
of him in their custody from Sunday morning to Tuesday morning, and any
assault committed upon him, were violations of state statutes10 and
criminal offenses. 11
We find no authority for the issue of the court order
under which the sheriff's deputies took the accused from jail to his
former home, and to the District Attorney's office for questioning.
12 The denial of opportunity to consult
counsel, requested on May 2nd, was a misdemeanor.
13 It may be assumed this treatment of the
petitioner also deprived him of his liberty without due process and that
the petitioner would have been afforded preventive relief if he could
have gained access to a court to seek it.
But illegal acts, as such, committed in the course of
obtaining a confession, whatever their effect on its admissibility under
local law, do not furnish an answer to the constitutional question we
must decide. The effect of the officers' conduct must be appraised by
other considerations in determining whether the use of the confessions
was a denial of due process. Moreover, petitioner does not, and cannot,
ask redress in this proceeding for any disregard of due process prior to
his trial. The gravamen of his complaint is the unfairness of the use of
his confessions, and what occurred in their procurement is relevant only
as it bears on that issue.
On the other hand, the fact that the confessions have
been conclusively adjudged by the decision below to be admissible under
State law, notwithstanding the circumstances under which they were made,
does not answer the question whether due process was lacking. The aim of
the rule that a confession is inadmissible unless it was voluntarily
made is to exclude false evidence. Tests are invoked to determine
whether the inducement to speak was such that there is a fair risk the
confession is false. 14 These vary in the
several states. 15
This Court has formulated those which are to govern
in trials in the federal courts. 16 The
Fourteenth Amendment leaves California free to adopt, by statute or
decision, and to enforce such rule as she elects, whether it conform to
that applied in the federal or in other state courts. But the adoption
of the rule of her choice cannot foreclose inquiry as to whether, in a
given case, the application of that rule works a deprivation of the
prisoner's life or liberty without due process of law. The aim of the
requirement of due process is not to exclude presumptively false
evidence, but to prevent fundamental unfairness in the use of evidence
whether true or false. The criteria for decision of that question may
differ from those appertaining to the State's rule as to the
admissibility of a confession.
As applied to a criminal trial, denial of due process
is the failure to observe that fundamental fairness essential to the
very concept of justice. In order to declare a denial of it we must find
that the absence of that fairness fatally infected the trial; the acts
complained of must be of such quality as necessarily prevents a fair
trial. Such unfairness exists when a coerced confession is used as a
means of obtaining a verdict of guilt. We have so held in every instance
in which we have set aside for want of due process a conviction based on
To extort testimony from a defendant by physical
torture in the very presence of the trial tribunal is not due process.
The case stands no better if torture induces an extrajudicial confession
which is used as evidence in the courtroom. 17
A trial dominated by mob violence in the courtroom is
not such as due process demands. 18 The
case can stand no better if mob violence anterior to the trial is the
inducing cause of the defendant's alleged confession.
If, by fraud, collusion, trickery and subornation of
perjury on the part of those representing the state, the trial of an
accused person results in his conviction he has been denied due process
of law. 19 The case can stand no better if,
by the same devices, a confession is procured and used in the trial.
The concept of due process would void a trial in
which, by threats or promises in the presence of court and jury, a
defendant was induced to testify against himself. The case can stand no
better if, by resort to the same means, the defendant is induced to
confess and his confession is given in evidence. As we have said, 'due
process of law ... commands that no such practice ... shall send any
accused to his death.' 20
Where the claim is that the prisoner's statement has
been procured by such means we are bound to make an independent
examination of the record to determine the validity of the claim. The
performance of this duty cannot be foreclosed by the finding of a court,
or the verdict of a jury, or both. 21 If
the evidence bearing upon the question is uncontradicted, the
application of the constitutional provision is unembarrassed by a
finding or a verdict in a state court; even though, in ruling that the
confession was admissible, the very tests were applied in the state
court to which we resort to answer the constitutional question.
There are cases, such as this one, where the evidence
as to the methods employed to obtain a confession is conflicting, and in
which, although denial of due process was not an issue in the trial, an
issue has been resolved by court and jury which involves an answer to
the due process question. In such a case we accept the determination of
the triers of fact, unless it is so lacking in support in the evidence
that to give it effect would work that fundamental unfairness which is
at war with due process.
Here judge and jury passed on the question whether
the petitioner's confessions were freely and voluntarily made, and the
tests applied in answering that question rendered the decision one that
also answered the question whether the use of the confessions involved a
denial of due process; this notwithstanding the issue submitted was not
eo nomine one concerning due process. Furthermore, in passing on the
petitioner's claim, the Supreme Court of the State found no violation of
the Fourteenth Amendment. Our duty then is to determine whether the
evidence requires that we set aside the finding of two courts and a jury
and adjudge the admission of the confessions so fundamentally unfair, so
contrary to the common concept of ordered liberty as to amount to a
taking of life without due process of law.
In view of the conflicting testimony, we are unable
to say that the finding below was erroneous so far as concerns the
petitioner's claims of physical violence, threats or implied promises of
leniency. There remains the uncontradicted fact that on two occasions,
separated by an interval of eleven days, the petitioner was questioned
for protracted periods. He made no admission implicating him in his
wife's death during, or soon after, the interrogations of April 19, 20,
and 21. If, without more, eleven days later confessions had been
forthcoming we should have no hesitation in overruling his contention
respecting the admission of his confessions.
Does the questioning on May 2nd, in and of itself, or
in the light of his earlier experience, render the use of the
confessions a violation of due process? If we are so to hold it must be
upon the ground that such a practice, irrespective of the result upon
the petitioner, so tainted his statements that, without considering
other facts disclosed by the evidence, and without giving weight to
accredited findings below that his statements were free and voluntary,
as a matter of law, they were inadmissible in his trial. This would be
to impose upon the state courts a stricter rule than we have enforced in
federal trials. 23 There is less reason
for such a holding when we reflect that we are dealing with the system
of criminal administration of California, a quasi-sovereign; that if
federal power is invoked to set aside what California regards as a fair
trial it must be plain that a federal right has been invaded.
We have not hesitated to set aside convictions based
in whole, or in substantial part, upon confessions extorted in graver
circumstances. These were secured by protracted and repeated questioning
of ignorant and untutored persons in whose minds the power of officers
was greatly magnified; who sensed the adverse sentiment of the community
and the danger of mob violence; who had been held incommunicado, without
the advice of friends or of counsel; some of whom had been taken by
officers at night from the prison into dark and lonely places for
questioning. 24 This case is outside the
scope of those decisions.
Like the Supreme Court of California, we disapprove
the violations of law involved in the treatment of the petitioner, and
we think it right to add that where a prisoner held incommunicado is
subjected to questioning by officers for long periods, and deprived of
the advice of counsel, we shall scrutinize the record with care to
determine whether, by the use of his confession, he is deprived of
liberty or life through tyrannical or oppressive means. Officers of the
law must realize that if they indulge in such practices they may, in the
end, defeat rather than further the ends of justice. Their lawless
practices here took them close to the line. But on the facts as we have
endeavored fairly to set them forth, and in the light of the findings in
the State courts, we cannot hold that the illegal conduct in which the
law enforcement officers of California indulged by the prolonged
questioning of the prisoner before arraignment, and in the absence of
counsel, or their questioning on May 2, coerced the confessions, the
introduction of which is the infringement of due process of which the
petitioner complains. The petitioner has said that the interrogation
would never have drawn an admission from him had his confederate not
made a statement; he admits that no threats, promises, or acts of
physical violence were offered him during this questioning or for eleven
days preceding it. Counsel had been afforded full opportunity to see him
and had advised him. He exhibited a self-possession, a coolness, and an
acumen throughout his questioning, and at his trial, which negatives the
view that he had so lost his freedom of action that the statements made
were not his but were the result of the deprivation of his free choice
to admit, to deny, or to refuse to answer.
The judgments are affirmed.
Mr. Justice BLACK, dissenting, with whom Mr. Justice
I believe the confession used to convict James was
the result of coercion and compulsion, and that the judgment should be
reversed for that reason. The testimony of the officers to whom the
confession was given is enough, sanding alone, to convince me that it
could not have been free and voluntary. Cf. Bram v. United States, 168
U.S. 532 , 18 S.Ct. 183. In brief, those officers admitted the following:
Suspecting the defendant of murder they entered his
home on Sunday, April 19, 1936, at 9 a.m. He was taken to a furnished
house next door, in which the State's Attorney's office had installed a
dictaphone. For the next forty-eight hours, or a little longer, the
State's Attorney, his assistants, and investigators held James as their
prisoner. He was so held not under indictment or warrant of arrest but
by force. At about 4 a.m. Monday, one Southard, an investigator, 'slapped'
the defendant whose left ear was thereafter red and swollen. James was
apparently kept at the State's Attorney's office during the daylight
hours; the full extent to which he was questioned there is not clear.
But on Monday and Tuesday nights, at the furnished house, with no one
present but James and the officers, he was subjected to constant
interrogation. The questioning officers divided themselves into squads,
so that some could sleep while the others continued the questioning. The
defendant got no sleep during the first forty-two hours after the
officers seized him. And about 3:30 or 4 a.m. Tuesday morning, while
sitting in the chair he occupied while being interrogated, at the very
moment a question was being asked him, the defendant fell asleep. There
he remained asleep until about 7 or 8 a.m. At about 11 a.m. the officers
took him to jail and booked him on a charge of incest. During the entire
forty- two hours defendant was held, he repeatedly denied any complicity
in or knowledge of the murder of his wife.
The second episode during which the officers held
defendant incommunicado, and which produced the confession, was on May 2
and in the early hours of May 3. About 11 a.m. on May 2 an investigator
for the District Attorney took James from his cell to the chaplain's
room of the jail. In the presence of an Assistant District Attorney he
was confronted by Hope and told that Hope had made a confession
implicating James in his wife's murder. James refused to talk and was
then carried back to his cell. A short time later, under a purported
order of court, the nature or authority of which does not appear, James
was taken from the jail to his home, and then somewhere between 1 and 4
p.m. to the District Attorney's office. The doors were locked. From then
until about midnight the District Attorney, his Assistants, and
investigators, subjected James to constant interrogation. Upon asking
for his attorney, James was told he was out of the city. He then asked
for another but whatever efforts the officers made to satisfy this
request were unsuccessful. He was again confronted with Hope but neither
this nor the questioning had elicited an admission of any nature by
midnight. At that time, according to the investigators, James said to
one of them, 'Can't we go out and get something to eat-if you fellows
will take me out to eat now, I will tell you the story.' 1 He was taken
out to eat by some of the officers, remained about an hour and a half,
while at the restaurant made damaging admissions, and upon his return to
the District Attorney's office, made the full statement which was used
to bring about his conviction, completing it at about 3 a.m. Southard,
the investigator who had previously 'slapped' him, was one of the signed
witnesses of the confession. 2
I think the facts set out are sufficient to make
applicable the principles announced in Chambers v. Florida, 309 U.S. 227
, 60 S.Ct. 472, 479, and the conclusion there announced that: 'Due
process of law, preserved for all by our Constitution, commands that no
such practice as that disclosed by this record shall send any accused to
his death.' White v. Texas, 310 U.S. 530, 533 , 60 S.Ct. 1032, 1033;
Canty v. Alabama, 309 U.S. 629 , 60 S.Ct. 612; Vernon v. Alabama, 313
U.S. 547 , 61 S.Ct. 1092. Cf. Bram v. United States, supra.
[ Footnote 1 ] 89 P.2d 39.
[ Footnote 2 ] 14 Cal.2d
403, 94 P.2d 569.
[ Footnote 3 ] Roby v.
Colehour, 146 U.S. 153 , 13 S.Ct. 47; Gulf and Ship Island R. R. Co. v.
Hewes, 183 U.S. 66 , 22 S.Ct. 26; Whitney v. California, 274 U.S. 357 ,
47 S.Ct. 641; Honeyman v. Hanan, 300 U.S. 14 , 57 S.Ct. 350.
[ Footnote 4 ] Judicial
Code 237, as amended, 28 U.S.C. 344(a), 28 U.S.C.A. 344(a).
[ Footnote 5 ] Judicial
Code 237, as amended, 28 U.S.C. 344(c), 28 U.S.C.A. 344(c).
[ Footnote 6 ] 313 U.S.
537 , 61 S.Ct. 832; 313 U.S. 597 , 61 S.T. 956.
[ Footnote 7 ] Penal Code
[ Footnote 8 ] Cf. Mooney
v. Holohan, 294 U.S. 103 , 55 S.Ct. 340, 98 A.L.R. 406.
[ Footnote 9 ] See
Wigmore, Evidence, 3rd Ed., Vol. II, 363.
[ Footnote 10 ]
California Penal Code 849, 4004.
[ Footnote 11 ] Id.
145, 146, 149.
[ Footnote 12 ] The
record does not disclose whether the application for the order was in
the form of a petition; whether defendant was apprised of the motion for
the order; whether he consented to its issue, or what representations
were made to the court which granted the order. Section 4004 of the 1941
Code ( 1600 of the 1935 Code) requires a prisoner committed by a
magistrate to be confined in a jail until legally discharged, and
declares that if he is permitted to go at large out of the jail, except
by virtue of a legal order or process, this shall constitute an escape.
The only statutes we are able to find authorizing an order for the
removal of a prisoner from jail are 4011 and 4012 of the Penal Code,
1941, ( 1607 and 1608 of the 1935 Code) which provide for cases of
individual illness or a general outbreak of pestilence or disease in a
prison. Section 4011 permits a removal without court order in case of
[ Footnote 13 ] Penal
[ Footnote 14 ] Wigmore,
Evidence, 3rd Ed., 823, 824.
[ Footnote 15 ] Id.
[ Footnote 16 ] Sparf
and Hansen v. United States, 156 U.S. 51, 55 , 15 S.Ct. 273, 275; Wilson
v. United States, 162 U.S. 613, 622 , 16 S.Ct. 895, 899; Bram v. United
States, 168 U.S. 532 , 18 S.Ct. 183; Ziang Sun Wan v. United States, 266
U.S. 1, 14 , 45 S.Ct. 1, 3.
[ Footnote 17 ] Brown
v. Mississippi, 297 U.S. 278 , 56 S.Ct. 461.
[ Footnote 18 ] Moore
v. Dempsey, 261 U.S. 86 , 43 S.Ct. 265.
[ Footnote 19 ] Mooney
v. Holohan, 294 U.S. 103 , 55 S.Ct. 340, 98 A. L.R. 406.
[ Footnote 20 ]
Chambers v. Florida, 309 U.S. 227, 241 , 60 S.Ct. 472, 479.
[ Footnote 21 ] Brown
v. Mississippi, supra, 297 U.S. 278 , 56 S.Ct. 461; Chambers v. Florida,
supra; Canty v. Alabama, 309 U.S. 629 , 60 S.Ct. 612; White v. Texas,
310 U.S. 530 , 60 S.Ct. 1032; Vernon v. Alabama, 313 U.S. 547 , 61 S.Ct.
1092; Lomax v. Texas, 313 U.S. 544 , 61 S.Ct. 956.
[ Footnote 22 ] Cases
supra, Note 21.
[ Footnote 23 ] Ziang
Sun Wan v. United States, 266 U.S. 1, 14 , 45 S.Ct. 1, 3, and cases
[ Footnote 24 ] See
Chambers v. Florida; Canty v. Alabama; White v. Texas; Vernon v.
Alabama; Lomax v. Texas, supra, Note 21.
[ Footnote 1 ] This is
rather close to a part of James' own testimony, to wit: 'He continued to
question me until later on in the evening. I was very sick. I was hungry;
I was tired, and I told him a thousand times that I didn't know anything
about Hope's story.'
[ Footnote 2 ] James'
testimony at this point was that Southard, left alone with him shortly
before midnight, said James had been lying to the District Attorney long
enough and threatened to take him back once again to the house next door
to his home where James had been questioned April 19 to 21. In response
to an inquiry whether he was told his confession might be used against
him, James replied: 'I didn't know whether the statement would be used
against me, or not. I would rather die than to have gone back to that
house and went through torture like the three days I was out there. I
didn't care whether the statement was taken, or not.'