"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." Lisenba v. California, 314 U.S. 219, 236 (62 S.Ct. 280, 86 L ed 166), quoted in Blackburn v. Alabama, 361 U.S. 199 (80 S.Ct. 274, 280, 4 L ed 2d 242, 248).
I hold that admission in evidence of defendant Hamilton's confession deprived him of process due by our Constitution (1908) and criminal code
Hamilton was born in and is a citizen of Iraq. He lived there until September of 1955, when he came to Detroit on authority of a student visa for the purpose of "learning to be a mechanic." He could not speak English
Mr. and Mrs. Hirmiz had been acquainted with Hamilton in Iraq. Mr. Hirmiz had been a neighbor, there, of Hamilton's family. Mrs. Hirmiz had been a friend of Hamilton's mother in Baghdad.
The homicide occurred during the night of February 9-10, 1956, in the Detroit apartment of Mr. and Mrs. Hirmiz. Mr. Hirmiz was found knifed to death. The police, called during the morning of February 10th, found his body in a bedroom of the Hirmiz apartment. They also found Mrs. Hirmiz in an adjacent room with her hands tied behind her and her feet tied to a table. She insisted that "a colored man" had entered the apartment and, after having killed her husband, that he tied her up in the manner described. Her story changed later.
One Jamil Jalaba, friend of Mr. and Mrs. Hirmiz and of Hamilton, communicated the content of Mrs. Hirmiz' confession to Hamilton. It is apparent from the record that Jalaba, doubtless in good faith,
From this point forward the record discloses much dispute and uncertainty. If Hamilton is believed, he was mistreated scandalously by the officers between the Friday morning arrest and the time of the Monday confession. The officers testified to the contrary, and at detailed length.
From the time of arrest February 10th, and continuously until his confession was obtained and recorded February 13th, defendant Hamilton was interrogated periodically by police officers — without pretense of effort on their part to comply with quoted section 13 of the criminal code — for the purpose of obtaining from him a confession of guilt. Even when Mrs. Hirmiz' confession was obtained the police did not comply with the requirements of said sections 13 and 26 of the code. Hamilton was not arraigned, or taken before a magistrate, until Tuesday morning, February 14th. During the 50-odd hour period between the 2 confessions an attorney sought to see Hamilton professionally. The attorney was refused access, not once but several times, having been sent first to one officer and then to others on various floors
Thus we face a recurrent question of due process of law; whether in the presented circumstances Hamilton's confession of guilt — of first degree murder — was shown by the prosecution as having been voluntary and so receivable in evidence. I hold it was not, and refer particularly to said sections 13 and 26 in conjunction with the reasoning of Mallory v. United States, 354 U.S. 449 (77 S.Ct. 1356, 1 L ed 2d 1479), and Upshaw v. United States, 335 U.S. 410 (69 S.Ct. 170, 93 L ed 100).
Hamilton's continued detention was unwarranted and so unlawful under these sections. It was unlawful because the delay was unnecessary, and unlawful because its manifest purpose was that of "sweating" a confession after the officers were fully enabled to complain and arraign according to the requirements of said section 26. His unjustifiably continued detention, coupled as it was with undisputed proof that counsel engaged for him was, during such detention, refused even limited conference, amounted to a denial of due process. Said sections 13 and 26, and Rule 5(a) of the Federal rules of criminal procedure
This does not mean that an arrested person cannot be "booked" and questioned for such time of "brief delay" as presented circumstances fairly require in order to determine the immediate question of release or complaint (Mallory, supra, at pages 454,
Here the delay (from and after, at least, the time of Mrs. Hirmiz' confession) was "unnecessary" as a matter of law. It admits of no defense on account of the claimed intervention of the half and whole holidays of Saturday, Sunday and Monday. Hamilton should have been taken before a magistrate no later than Saturday afternoon, immediately following the confession of his codefendant. And it will not do so say or infer that the magisterial courts of Wayne county were closed and remained so until the following Tuesday. Magistrates of Michigan are, for the purposes of said sections 13 and 26, on legal duty at all times; Sunday, holidays or no. See Linnen v. Banfield, 114 Mich. 93, 97, wherein pertinent statutes yet in effect (How Stat § 1591; CLS 1956, § 435.101 [Stat Ann 1957 Rev § 18.861], and How Stat § 7250; CL 1948, § 604.12 [Stat Ann § 27.471]) were construed as keeping our magisterial courts continuously open for such purposes. There is, finally, no proof here tending to show that not one of the many magistrates of Wayne county was available during such intervening days. It is not even shown that an unsuccessful effort was made during the time
This construction of our rules of criminal procedure will bring them to necessitous concord with corresponding features of Federal Rule 5(a). Too, it will mean that constitutional due process means the same thing in Michigan, to an arrested person, whether he is charged or to be charged with violation of State or Federal law. We have our own guarantee of due process.
Admittedly, some of these conclusions collide with the "question-of-fact" doctrines found in cases like Mooradian v. Davis, 302 Mich. 484; Oxford v. Berry, 204 Mich. 197; Leisure v. Hicks, 336 Mich. 148; and Hammitt v. Straley, 338 Mich. 587. But such doctrines now, considering intervening decisions of the Supreme Court found in recent annotations, 1 L ed 2d 1735, to which should be added Crooker v. California, 357 U.S. 433 (78 S.Ct. 1287, 2 L ed 2d 1448); Spano v. United States, supra, and Blackburn v. Alabama, supra, live perilously at best. No longer, our alternative task being that of determination whether Hamilton's confession was admissibly voluntary as a matter of federally guaranteed due process, may we escape the duty of independent examination of the record; apart from fact-findings below. Norris v. Alabama, 294 U.S. 587 (55 S.Ct. 579, 79 L ed 1074); Spano v. New York, supra. Such Federal question is squarely before us unless, of course, this Court concludes in lieu of its determination that Hamilton's confession was erroneously received in evidence by the standards of Michigan law.
My conclusion upon this record was announced in the preamble above. The trial judge erred in receiving, over objection, defendant Hamilton's confession of guilt. On that account I would reverse the judgment of the trial court and order that Hamilton be tried anew.
DETHMERS, C.J., and CARR, KELLY, SMITH, EDWARDS, KAVANAGH, and SOURIS, JJ., concurred.
"A peace officer who has arrested a person without a warrant must without unnecessary delay, take the person arrested before the most convenient magistrate of the county in which the offense was committed, and must make before the magistrate a complaint, stating the offense for which the person was arrested." Section 13, chapter 4, code of criminal procedure (CL 1948, § 764.13 [Stat Ann 1954 Rev § 28.872]).
"Every person charged with a felony shall, without unnecessary delay after his arrest, be taken before a magistrate or other judicial officer and, after being informed as to his rights, shall be given an opportunity publicly to make any statement and answer any questions regarding the charge that he may desire to answer." Section 26, chapter 4, code of criminal procedure (CL 1948, § 764.26 [Stat Ann 1954 Rev § 28.885]).
"It is readily apparent from Jalaba's testimony that he was eager to assist Hamilton, and went to police headquarters to see appellant after talking to a lawyer and learning that the latter would not act without authority from Hamilton's father because appellant was a minor."
Later in the day Jalaba talked by long distance with someone in Baghdad. It is not clear whether the person talked with was or was not one of Hamilton's parents.
"Q. Then it was 4 or 4-1/2 hours you spent chasing around police headquarters trying to see Maurice Hamilton, is that correct?
"A. That is correct."
"This provision has both statutory and judicial antecedents for guidance in applying it. The requirement that arraignment be `without unnecessary delay' is a compendious restatement, without substantive change, of several prior specific Federal statutory provisions. (E. g., 20 Stats 327, 341, 342; 48 Stat 1008; also 28 Stat 416.) See Dession, The New Federal Rules of Criminal Procedure, 55 Yale LJ 694, 707. Nearly all the States have similar enactments." (For Rule 5(a) see 18 USCA, Federal Rules of Criminal Procedure, p 115; see, also, 327 U.S. 821, 835. — REPORTER.)