I infer from Ziang Sung Wan v. United States, 266 US. 1, 45 S.Ct. 1, 69 L.Ed. 131, that the defendant’s confession should have been excluded. It is true that Wan was sicker than McAffee, but McAffee was 70 years old, and obviously suffering toxic effects of alcohol. He had drunk a quart of liquor, more or less, during the day, and a good deal on the two previous days. It is not disputed that during most of the night he was drunk. At 6 p. m. he was so thoroughly unconscious that a witness had to shake him very hard to wake him. He was taken to the station house and put in a cell, and lost consciousness so promptly that there was difficulty in waking him again at 7 p. m. At some time in the middle of the night the assistant coroner, a physician, gave him an ounce and a half or two ounces of whiskey. It seems clear that the whiskey was by way of treatment for the defendant’s “highstrung condition” to which the doctor testified. When defendant signed the confession at about 7 the next morning he was in “a very nervous state;” “a nervous and highstrung condition;” “a little shaky;” he looked “like a man who had just come out of a hangover.” He was cold and wet, and told the doctor that he was not feeling well. Again at about 10 a. m., several hours after the confession, defendant was given whiskey to drink upon the advice of the doctor. Clearly he was not a well man at any time during the night.
It is true that the police increased the discomfort of McAffee far less than that of Wan: but they increased it a good deal. McAffee obviously wanted sleep, and he was not permitted to get it except during short intervals. At about 6:30 p. m. officers took him to the police station. They waked him at 7 and took him to the Captain’s office for questioning. About 8:30 they questioned him for an hour or more. They questioned him about half an hour at 10 o’clock. Then they took him to the house where the crime was committed, and where the body still was, and questioned him there for half an hour. They questioned him about midnight. By 12:30 he had fallen asleep; they aroused him and brought him out of his cell for questioning. They questioned him in the Captain’s office at some time between 1 and 2, and kept him there until 2 or 3. At 3 o’clock he was “talking in a rambling manner.” From 3 until about 5 a. m. he seems to have been allowed to sleep. At about 5 he was questioned at the station, taken again to the scene of the crime for “quite some time,” and then taken to headquarters, where he signed the confession a few minutes before 8 o’clock. The estimate of a police sergeant, not continuously present, that defendant had “possibly 5 hours of sleep” cannot be correct. Being repeatedly waked up, kept awake, moved about, and questioned, when he must have been in great need of sleep, necessarily inflicted *34great misery on the defendant and made further inroads on what power of resistance he had in his besotted condition. He got wet and cold from being taken about in the rain. Moreover, his shoes and trousers were taken from him ¿bout 8:30 p. m.; he was taken through the streets at least once in pajamas, and was in “underdrawers or pajamas, or something” a large part of the night. This, whatever its purpose, probably tended to weaken his resistance. In Bram v. United States, 168 U.S. 532, 561, 563, 18 S.Ct. 183, 42 L.Ed. 568, in which a confession was held inadmissible, the Supreme Court emphasized among other things the fact that the prisoner had been stripped of his clothing.
Blows, promises, or threats are not necessary to vitiate a confession. Ziang Sung Wan v. United States, 266 U.S. 1, 45 S.Ct. 1, 69 L.Ed. 131; Perrygo v. United States, 55 App.D.C. 80, 83, 2 F.2d 181. The confession in the Wan case was held not “voluntary” because the prisoner, who was ill and in pain, was kept awake, moved about, confronted with evidence, and questioned for many days. In the present case there was far less abuse, but I think there was enough to vitiate the confession. I do not suggest that no questions may be asked of a sick or drunken prisoner, or that he may complain of trifling interferences with his sleep. The misery inflicted upon Mc-Affee was serious. It may have worn down his resistance until the need for peace drove him to say, regardless of the truth, what seemed necessary in order to get it.
From the point of view of one who is not sleepy and can go to bed when he likes, a prisoner makes a bad bargain if he risks his neck for a little rest; but it is human to discount the future when one is suffering from an immediate physical need. We are told that Esau, being hungry, sold his birthright for a mess of pottage. The craving for sleep which follows an overdose of alcohol is urgent. And powers of resistance vary. “In weighing confessions as to whether or not voluntary, the age, character, and situation of the accused at the time it was made, are important considerations.” Curry v. State, 203 Ala. 239, 82 So. 489, 493. Much depends “upon the age, the experience, the intelligence, and character of the prisoner.” Biscoe v. State of Maryland, 67 Md. 6, 7, 8 A. 571. Mental and physical condition at the time of the confession affect the question. People v. Ferdinand, 194 Cal. 555, 569, 229 P. 341.
I take the principle of the Wan case to be that, if serious and protracted discomfort is inflicted in the effort to get information about a crime, a confession which follows should be excluded as involuntary, at least when the prisoner’s character is not shown to be peculiarly rugged and his condition is such as to make him specially susceptible to pressure. I think this case is within that principle. In State v. Powell, 258 Mo. 239, 167 S.W. 559, 561, a colored workman’s confession of murder, made to a group of white officers, was held involuntary on two distinct grounds: (1) promises, and (2) questioning which continued, with slight intermissions, from 2 p. m. to 11 or 1 at night. There was far less interference with sleep there than here. The court said: “The age, sex, disposition, and past experience of the party must necessarily be considered. . . . Such a man would hardly be expected to possess strong enough will power to resist indefinitely the accusations and interrogations of expert detectives. . . . The fact that defendant was kept up to a very late hour of the night and vigorously interrogated, and that he appeared to be ‘tired and worn-out from the strain’ are circumstances tending to cast discredit on the confession.” In Enoch v. Commonwealth, 141 Va. 411, 126 S.E. 222, a confession was declared inadmissible because it was produced by hours of insistent questioning, partly in the presence of gruesome evidence, in the course of which the prisoner became exhausted. He was questioned, with slight intermissions, from 11 o’clock Saturday morning to 1 o’clock that night. He was questioned on Sunday morning, after 8:30, and almost continuously from 3 or 4 that afternoon until 6 or 7, when he confessed; but from 1 a. m. to 8:30 a. m. on Sunday he was allowed to rest without interruption. McAffee was given no such chance to recuperate.
There are cases in some states which sustain much greater severity than was used here, but I think they should not be followed.
The government’s brief points out that defendant was not “accused to his face” until 5 in the morning; but it is not denied that he was suspected earlier, and the taking of his clothing in the evening, to examine it for bloodstains, shows that he was. *35Moreover, it is not clear that the officers’ motive for the treatment which they inflict is important. If a prisoner were brutally beaten, and then confessed, the confession would not be made admissible by proof that the officers told him, and told him truthfully, that they would be satisfied if he incriminated a third person. The questioning which was held to invalidate the confession in State v. Powell, supra, was devoted largely to efforts to implicate others. The probable ineffectiveness of protest from a colored janitor to police officers, and McAffee’s besotted condition, are sufficient explanations of his failure to complain at the time; and his condition explains also his purported failure to remember the proceedings later.
It is true, as in many confession cases, that there is objective evidence here which suggests guilt, but it is less impressive than that in the Israel case.1 There, the evidence included a loaded revolver, with one empty chamber, found on the defendant when he was arrested; a discharged cartridge found at his former boarding place; and the opinion of a firearms expert that the fatal bullet came from the defendant’s revolver. Witnesses reported that they had seen him running from the scene of the murder. The police used no physical violence, b'ut several officers questioned him for hours at a time, at intervals, from noon on Wednesday to 4 p. m. on Thursday; and he made a signed confession. The evidence then seemed overwhelming. But physicians examined Israel on the day after his confession and reported that he was a man of weak will, peculiarly subject to suggestion, exhausted, and incapable of making a dependable statement on either day. After a few days’ rest he denied the crime, and said that he had confessed because he was so tired that he was willing to admit anything in order to get a rest, and because everything was against him. The physicians “were of the opinion also that if they cared to subject the accused to a continuous and fatiguing line of interrogation, accusation and suggestion in due course he would be reduced to such a mental state that he would admit practically anything that his interrogators desired. They further stated that this was a common phenomenon with certain types of people, and that where such people are subjected to interrogatories, accusations or suggestions from persons of stronger will, the lesser mind will ultimately succumb and accept the conclusions of the more powerful intellect.” IS J.Crim.L. & Crim. 416. The state’s attorney for- Fairfield County, Connecticut — who was Homer Cummings, later Attorney General of the United States — studied the case, despite the confession. He found that all Israel’s incriminating admissions referred to facts previously known to the police, and “presumably related to the accused during the period of his examination.” (p. 417) In the present case it is not shown that the freshly-washed furnace-shaker was known to the police, but it was certainly available to them, before the confession. In the Israel case the fire-arms evidence broke down; the eye-witness identifications broke down; an alibi was verified; and the state’s attorney entered a nolle prosequi.
Other examples of murder confessions which proved false are given in the Report on Lawlessness in Law Enforcement of the National Commission on Law Observance and Enforcement (Wickersham Commission), p. 182 IT. Cf. Borchard, Convicting the Innocent, pp. 20, 110 ff; Wigmore, Evidence, § 867, note 1. Those who studied the third degree for the Commission2 found that it not only involves danger of false confession, but actually impairs the efficiency of the police by making them lazy *36and unenterprising; impairs the administration of criminal law in the courts by-making jurors suspicious of police testimony, diverting attention from the main issue, and requiring reversals of some convictions which could have been properly obtained; brutalizes the police, hardens the prisoner, and lowers public esteem for the administration of justice, (pp. 181-190) The Commission itself, which included among others Roscoe Pound, George W. Wickersham, and Newton D. Baker, unanimously reached similar conclusions.
As the Virginia court said in the Enoch case: “The police detectives have testified with apparently great candor and fairness. * * * They verily thought they were doing their duty, and the state a service, in their efforts to secure a confession. But in this they were in error.” Enoch v. Commonwealth, 141 Va. 411, 126 S.E. 222, 226. The common-law rule excludes extorted confessions because they may be untrue. The Fifth Amendment excludes them because they are extorted.3
As “there was here no conflict of testimony” with regard to the circumstances in which the alleged confession was obtained, the question is whether it was “voluntary or involuntary in contemplation of law.” That question was for the court. Concerning it there was “nothing to be passed upon by a jury.” West v. United States, 20 App.D.C. 347.
TJnreported.
Three eminent lawyers, Zeehariah Ghafee, Jr., Walter H. Poliak, and Carl S. Stern, made an extensive study. Their findings and conclusions are published in the Commission’s Report on Lawlessness in Law Enforcement (1931). They define the term “third degree” broadly, to mean “the employment of methods which inflict suffering, physical or mental, upon a person in order to obtain information about a crime.” (p. 19) The process, as so defined, frequently involves no violence. “Perhaps the most common third-degree method is protracted questioning.” (p. 72) The authors say: “That in fact there is no correlation between the third degree practice and efficient police administration the evidence leaves us in no doubt. Chicago, with the third degree highly developed, is a particular sufferer from professional and violent crime. Boston has virtually no third degree, and a high standard of police efficiency. . . The English statistics are very persuasive : The third degree does not exist, and the percentage of unsolved crimes is small — judged by the standards of our country, remarkably small.” (pp. 188, 189)
They are covered by the provision that “No person . . . shall be compelled in any criminal case to be a witness against himself.” Bram v. United *37States, 168 U.S. 532, 542, 18 S.Ct. 183, 42 L.Ed. 568. Cf. National Commission on Law Observance and Enforcement, Report on Lawlessness in Law Enforcement, p. 26. Nearly all the State constitutions have similar provisions. 4 Wigmore, Evidence, § 2252, note 3. Dean Wigmore. and a number of courts, however, limit the effect of these constitutional clauses to statements made in court under process as a witness. Evidence, §§ 823, 2266. But cf. § 2251, p. 822.