Carignan

185 F.2d 954 CARIGNAN v. UNITED STATES. No. 12517. United States Court of Appeals Ninth Circuit. December 8, 1950. Harold J. Butcher, Anchorage, Alaska, for appellant. J. Earl Cooper, U. S. Atty., Anchorage, Alaska, for appellee. Before HEALY, BONE, and POPE, Circuit Judges. HEALY, Circuit Judge. 1 Appellant was indicted and convicted of murdering one Laura Showalter in the course of an attempt to commit rape upon her. As required by the pertinent Alaska statute, 1 he was sentenced to death. 2 Numerous grounds for reversal are assigned, four of which, only, are urged. These are (1) that there was error in admitting a confession of appellant, claimed to have been involuntary and wrongfully procured; (2) that the court erred in declining to permit the accused to take the stand and testify, in the absence of the jury, on matters concerning the admissibility of the confession; (3) that the court was in error in denying the accused's motion for removal of the cause on the ground of the existence of local passion and prejudice rendering a fair trial impossible; and (4) that the verdict is not supported by the evidence in that there was no proof that the homicide occurred in the course…

Appellant was indicted and convicted of murdering one Laura Showalter in the course of an attempt to commit rape upon her. As required by the pertinent Alaska statute, 1 he was sentenced to death.

Numerous grounds for reversal are assigned, four of which, only, are urged. These are (1) that there was error in admitting a confession of appellant, claimed to have been involuntary and wrongfully procured; (2) that the court erred in declining to permit the accused to take the stand and testify, in the absence of the jury, on matters concerning the admissibility of the confession; (3) that the court was in error in denying the accused’s motion for removal of the cause on the ground of the existence of local passion and prejudice rendering a fair trial impossible; and (4) that the verdict is not supported by the evidence in that there was no proof that the homicide occurred in the course of an attempted rape.

Following is a summary of the development of the case as shown by witnesses for the government. About nine o’clock on the evening of July 31, 1949, one Keith, while walking toward his home in the city of Anchorage, observed a man and woman lying in the grass in a small park. He…

(concurring in result) .

Despite my personal conviction that simple justice in this case would be served by affirmance of the judgment, I feel obliged, for reasons noted below, to agree with the final holding announced by Judge Healy in which the judgment is reversed.

The prevailing opinion outlines the general fact situation revealed by the record *959 and most of these matters require no further comment. Unless I wholly misunderstand the import and teachings of the Upshaw decision, 1 335 U.S. 410 , 69 S.Ct. 170 , 93 L.Ed. 100 , application of the rule it an- ' nounces requires our disposition of this case on this appeal. Before proceeding to a discussion o‘ the Upshaw case certain vital aspects of the instant case deserve emphasis.

As our opinion points out appellant was questioned about his rape of Christine Norton after being picked up on that charge. While being questioned regarding that offense (upon which he was later convicted) appellant was incidentally questioned about the Showalter murder then under investigation but he gave the officers no information about the Showalter matter. It is obvious that up to this time he had said nothing which was, or could be, used…

(dissenting).

As I read Upshaw v. United States, 335 U.S. 410 , 69 S.Ct. 170, 171 , 93 L.Ed. 100 , I am convinced that it does not require the result here reached, and that what we are about to do is to extend the doctrine of that case beyond its intended dr proper boundaries.

The language of the Upshaw case, expounding the McNabb case, is that the confessions were there rejected because the defendants were questioned "while held in ‘plain disregard of the duty enjoined by Congress upon Federal officers’ promptly to take them before a judicial officer”, and that the McNabb confessions were "induced by illegal detention”. The confessions in the Mitchell case, United States v. Mitchell, 322 U.S. 65 , 64 S.Ct. 896 , 88 L.Ed. 1140 , were distinguished because made “'before any illegal detention had occurred.” Upshaw’s confession was held to have been given while he was “illegally detained for at least thirty hours for the very purpose ■of securing these challenged confessions.” Therefore, it was said, the confessions were “ ‘the fruits of wrongdoing’ by the police.”

The plain fact here is that when Carignan gave his confession he was not being held in disregard of any duty on the…