delivered the opinion of the Court.
Malinski and Rudish were convicted along with one Indovino of the murder of Leon Fox, a police officer who, late at night, was escorting a manager of a theatre to a bank depository. The details will be found in 292 N. Y. 360. There were no eye witnesses to the crime who could identify the robbers. Malinski was implicated by various witnesses — by Spielfogel, an old friend and a criminal serving a sentence of thirty to sixty years in Sing Sing; by Malinski’s girl friend; by Malinski’s brother-in-law. Each testified that Malinski confessed the crime to him or her. The confessions to the girl friend and to the brother-in-law were made a few hours after the crime and were merely that Malinski had shot a cop; but the confession to Spielfogel disclosed in detail the planning and execution of the crime. Malinski denied making these confessions. Yet as the New York Court of Appeals pointed out (292 N. Y. p. 370) those confessions and other evidence of the State were sufficient, if believed, to support the conviction, wholly apart from another confession around which the present controversy turns. But the circumstances under which the latter confession was obtained raised the substantial federal question which prompted us to grant the petition for a writ of certiorari.
*403I
Malinski was arrested while on his way to work on the morning of Friday, October 23, 1942. The police did not then arraign him but took him to a room in the Bossert Hotel in Brooklyn where he arrived about 8 A. M. He was immediately stripped and kept naked until about 11 A. M. At that time he was allowed to put on his shoes, socks and underwear and was given a blanket in which to wrap himself. He remained that way until about 6 P. M. Malinski claims he was beaten by the police during that period. The police denied this. There was no visible sign of any beating, such as bruises or scars; and Malinski made no complaint to the judge on arraignment nor to the jail authorities where he was later held. Sometime during Friday morning Spielfogel was brought to the hotel. He and Malinski were put alone together in a room sometime that afternoon. Shortly after their conference — apparently around 5:30 P. M. or 6:00 P. M. — Malinski confessed to the police. After it was made Malinski was allowed to dress. Malinski was kept at the hotel that night and the next three days. The record does not show exactly how long and frequent the questioning was after the first confession. But it is clear that Malinski was questioned in the early hours of Saturday, the 24th, and at other times during that day. He was further questioned on Sunday, the 25th, and taken with Spielfogel from the hotel to the scene of the crime where he identified several places which had a relationship to the commission of the crime and where he pointed out how the crime was executed. On Monday, the 26th, he was taken from the hotel to the police garage where he identified the automobile used in the robbery. At about 5:00 P. M. on Monday he was taken to a police station and questioned. On Tuesday morning, October 27th, about 2 A. M. he made a confession *404at the police station. That confession was introduced at the trial. Shortly thereafter — about 4:00 A. M. — he was booked and put in a cell and soon arraigned.
The trial court held a preliminary hearing on the voluntary character of the confession of October 27th before allowing it to be introduced in evidence. There is a question in the case whether the confession of October 23rd as well as that of October 27th was submitted to the jury, a question to which we will return. It is sufficient here to note that the trial court charged the jury that a confession should not be considered by them unless they found beyond a reasonable doubt that it was voluntary. And they were told that although the delay in arraignment was not conclusive, they might consider it in passing on the question of voluntariness. The Court of Appeals sustained the judgment of conviction by a divided vote.1 But the question whether there has been a violation of the due process clause of the Fourteenth Amendment by the introduction of an involuntary confession is one on which we must make an independent determination on the undisputed facts. Chambers v. Florida, 309 U. S. 227; Lisenba v. California, 314 U. S. 219; Ashcraft v. Tennessee, 322 U. S. 143.
If all the attendant circumstances indicate that the confession was coerced or compelled, it may not be used to convict a defendant. Ashcraft v. Tennessee, supra, p. 154. And if it is introduced at the trial, the judgment of conviction will be set aside even though the evidence apart from the confession might have been sufficient to sustain the jury’s verdict. Lyons v. Oklahoma, 322 U. S. 596, 597.
If the evidence alone is considered, there is serious doubt whether the confession made on the late afternoon of Fri*405day, October 23rd (the first day of Malinski’s detention) was admissible under the rule of Chambers v. Florida, Lisenba v. California, and Ashcraft v. Tennessee, supra. If the confession had been the product of persistent questioning while Malinski stood stripped and naked, we would have a clear case. But it was not. Malinski was stripped when he arrived at the hotel so that he might be examined for bullet wounds.2 He remained in that condition several hours — much longer than any such physical examination could possibly justify. But it does not appear that he was subjected to more than occasional questioning during that period. No confession was obtained from him at that time. He said he was beaten; but that was disputed. And the assertion has such a dubious claim to veracity that we lay it aside. In any event, he soon had his shoes, socks, and underwear back on and a blanket in which to wrap himself. He complained of that treatment in his testimony. The police justified it with the dubious explanation that it was to make certain that Ma-linski did not escape. Yet the record does not show any persistent and incessant — let alone gruelling — questioning by the police while Malinski was only partially clothed. There are many gaps in the chronological narrative of what transpired that day. But several circumstances stand out. Malinski was held incommunicado; he was not allowed to see a lawyer, though he asked for one, and he was not allowed to see friends, with one exception.3 That *406exception was Spielfogel.4 As we have noted, he and Ma-linski had a private conference that afternoon. Malinski was told that Spielfogel was there. Malinski asked to see him. Spielfogel’s version of what transpired varies from Malinski’s. The former says that Malinski told him the police knew so much that Malinski figured he “might as well go out there and tell them the rest.” Malinski said that he asked Spielfogel, “What are you doing with me?”; and that Spielfogel replied, “don’t let them hit you. You know you didn’t do it. Go out and say I told you to tell the truth.” Shortly thereafter Malinski made his confession of October 23rd. If that evidence alone is not sufficient to show that that confession was coerced, the comments of the prosecutor place it beyond doubt. For in his summation to the jury he made certain statements which the Court of Appeals said were “indefensible” (292 N. Y. p. 373) and which we think are sufficient to fill in any gaps on the record before us and to establish that this confession was not made voluntarily. He said that Malin-*407ski “was not hard to break”; that “He did not care what he did. He knew the cops were going, to break him down.” And he added:
“Why this talk about being undressed? Of course, they had a right to undress him to look for bullet scars, and keep the clothes off him. That was quite proper police procedure. That is some more psychology — let him sit around with a blanket on him, humiliate him there for a while; let him sit in the corner, let him think he is going to get a shellacking.”
If we take the prosecutor at his word, the confession of October 23rd was the product of fear — one on which we could not permit a person to stand convicted for a crime.
But it is said that this coerced confession was not introduced in evidence, that it was submitted to the jury only insofar as it threw light on the voluntary character of the subsequent confessions, and that under the rule of Lyons v. Oklahoma, supra, p. 601, the adequacy of that instruction to the jury is solely for the state courts to determine. We do not think, however, that Lyons v. Oklahoma, supra, fits this case.
The confession of October 23rd was oral. Its details were not put in evidence. But Spielfogel, a witness for the prosecution, adverted to it in his testimony, saying that Malinski told “everything” at that time. A police officer testified on behalf of the prosecution to the same effect. The prosecutor referred to it in his summation in language which we have already quoted. He added that “Six o’clock in the evening after he (Malinski) was picked up, he told the whole thing.” When the confession of October 27th (which was a detailed confession taken down by a stenographer) was offered in evidence, a preliminary hearing was had. That hearing covered the voluntary character of the October 23rd confession as well as the October 27th confession. The trial court in its charge to the jury reviewed the events leading up to the confession *408of October 23rd — the prosecutor’s version, Malinski’s version. It then referred to the delay in arraigning Malin-ski, stating that the police claimed they were willing to arraign Malinski on the day of his arrest but that Malinski preferred to stay at the hotel with Spielfogel. It then charged:
“Be that as it may, I charge you that it was the duty of the police to arraign the defendant before the nearest Magistrate without unnecessary delay, and, further, that if a police officer failed or refused to perform such duty, he is guilty of a misdemeanor.
“But, gentlemen, you will bear in mind that the police department is not on trial in this case. This testimony was adduced solely on the question as to whether or not the alleged confession later made was the result of the coercion, either direct or implied, which is prohibited by the statute, and which invalidates a confession if made. If you should find that the arraignment of the defendant was delayed, you may consider that on the question of the voluntariness of any confession made by Malinsky, including the one made in the early hours of October 27th at the Bath Beach station house.
“However, I am charging you that the failure to arraign, in and of itself, is not conclusive against the People, and does not in and of itself, standing alone, destroy the validity of the confession. Is that clear?
“On the question whether Malinski was coerced, you may consider that he made no complaint to the Magistrate when arraigned and did not seek the services of the jail physician. That evidence, if true, is not, however, conclusive against Malinski, but may be considered by the jury on the issue of the voluntariness of the confession.”
Malinski made no objections to these references to his confession of October 23rd. And while he asked for a mistrial because of the prosecutor’s comments, he made on this phase of the case no requests to charge which were *409refused. The Court of Appeals, however, did not hold that Malinski was precluded from objecting5 to the use made at the trial of his confession of October 23rd. It considered his objection that “it was error for the court to submit to the jury the confession made by Malinski orally on October 23rd” as well as the other three confessions made to the police. 292 N. Y. p. 370. And it made plain, when it held that Malinski’s “confession” should not have been excluded as a matter of law, that it meant “not only the confession made orally to a police officer on the Friday night of the arrest but also the two automobile trips on Sunday and Monday, one to the police garage to permit Malinski to identify the automobile used in the crime and the other to Coney Island to revisit a restaurant and the scene of the crime, and the confession to the District Attorney which was taken stenographically in the early morning of Tuesday, October 27th.” 292 N. Y. pp. 373-374. Its ruling was that none of the four confessions was involuntary as a matter of law. Thus as we read the opinion of the Court of Appeals, it reviewed the judgment of conviction on the basis that all four confessions to the police had been submitted to the jury. We find no indication that it construed the record to be like the one in Lyons v. Oklahoma, supra, where consideration of the first coerced confession was strictly limited to the voluntary character of subsequent confessions. Nor do we think that the record before us can be fairly construed in that manner.
There were repeated references at the trial to the confession of October 23rd. The prosecutor made emphatic references to it in his summation. On this record the fact *410that Malinski confessed to the crime shortly after he was arrested stands out in bold relief. The use made of the confession could hardly have been more effective had its details been put in evidence. It was not insulated from the trial. The part of the charge to the jury which we have quoted may possibly have been an effort in that direction. But it is more susceptible of the interpretation that the delay in arraignment, not the first confession, was to be considered “solely on the question as to whether or not the alleged confession later made was the result of the coercion.” That seems to have been the interpretation given the charge by the Court of Appeals. 292 N. Y. p. 374. No more explicit charge was given. The jury at no time was admonished that it could not convict on the basis of the first confession nor consider it as evidence against Malinski. We must consider the case, therefore, as one in which a coerced confession was employed to obtain a conviction. Coerced confessions would find a way of corrupting the trial if we sanctioned the use made of the October 23rd confession in this case. Constitutional rights may suffer as much from subtle intrusions as from direct disregard.
It is thus apparent that the judgment before us rests in part on a confession obtained as a result of coercion. Accordingly a majority of the Court do not come to the question whether the subsequent confessions were free from the infirmities of the first one.6
II
■ We have not mentioned Rudish. He did not confess to the police. He was tried jointly with Malinski, his counsel electing not to ask for a severance. We are asked to reverse as to Rudish because the confession of October 27th which was introduced in evidence against Malinski *411was prejudicial to Rudish. It is argued that that course is indicated by Anderson v. United States, 318 U. S. 350. In that case we reversed a judgment of conviction against all the defendants though the confessions which had been introduced were the confessions of only some of them. But in that case we were reviewing a criminal proceeding in a federal District Court over which we have more control than we do over criminal trials in the state courts. McNabb v. United States, 318 U. S. 332. Moreover, in the Anderson case the jury was told that in considering the guilt or innocence of each defendant they could consider the whole proof made at the trial. And it appeared that the prosecution leaned heavily on the confessions to establish its case against all the defendants. The furthest we have gone in a comparable case from a state court is to vacate the judgment against the co-defendant who did not confess and remand the case to the state court for further consideration. Thus in Ashcraft v. Tennessee, 322 U. S. 143, 155, we followed that procedure, at the suggestion of the Attorney General of the State, where the judgment against the co-defendant who did not confess was sustained by the state court on the assumption that the confession which we held to be coerced was properly admitted and that the conviction of the defendant who did confess was valid.
We do not believe that procedure is appropriate in this case even though it be assumed arguendo that the confession of October 27th was involuntary. It is true that that confession referred both to Rudish and to Indovino. But before that confession was offered in evidence the trial court with the complete approval of counsel for Rudish worked out a procedure for protecting Rudish and In-dovino. “X” was substituted for Rudish, “Y” for Indo-vino. The jury were plainly instructed that the confession was admitted against Malinski alone and that they were not to speculate concerning the identity of “X” or “Y.” When it came to the charge, the trial court sub*412mitted the case against Rudish separately from the one against Malinski.7 The Court of Appeals in sustaining the judgment against Rudish in no respect relied on any confession to the police which Malinski made. And when it turned to the comments of the prosecutor, which we have quoted, it noted that they concerned Malinski, not Rudish. 292 N. Y. p. 373.
On this record the questions raised by Rudish involve matters of state procedure beyond our province to review. Barrington v. Missouri, 205 U. S. 483. Since the case against him, both as tried and as sustained on review, was not dependent on Malinski’s confession of October 27th, we think it inappropriate to vacate the judgment as we did in Ashcraft v. Tennessee, supra, though we assume that that confession was coerced. Whether our reversal of the judgment against Malinski would as a matter of state law affect the judgment against Rudish is not for us to say. In each case our mandate will provide for a remand to the Court of Appeals for proceedings not inconsistent with this opinion.
The judgment against Rudish is affirmed.
The judgment against Malinski is reversed.
It is so ordered.
Mr. Justice Frankfurter.It is also my view that the judgment as to Malinski calls for reversal, leaving the disposition of Rudish's conviction in the light of such reversal to the New York Court of Appeals.
Apart from permitting Congress to use criminal sanctions as means for carrying into execution powers granted to it, the Constitution left the domain of criminal justice *413to the States. The Constitution, including the Bill of Rights, placed no restriction upon the power of the States to consult solely their own notions of policy in formulating penal codes and in administering them, excepting only that they were forbidden to pass any “Bill of Attainder” or “ex post facto Law,” Constitution of the United States, Art. I, § 10. This freedom of action remained with the States until 1868. The Fourteenth Amendment severely modified the situation. It did so not by changing the distribution of power as between the States and the central government. Criminal justice was not withdrawn from the States and made the business of federal lawmaking. The Fourteenth Amendment merely restricted the freedom theretofore possessed by the States in the making and the enforcement of their criminal laws.
Unlike the limitations of the Bill of Rights upon the use of criminal penalties by federal authority, the Fourteenth Amendment placed no specific restriction upon the administration of their criminal law by the States. Congress in proposing the Fourteenth Amendment and the States in ratifying it left to the States the freedom of action they had before that Amendment excepting only that after 1868 no State could “abridge the privileges or immunities of citizens of the United States” nor “deprive any person of life, liberty, or property, without due process of law,” nor deny to any person the “equal protection of the laws.” These are all phrases of large generalities. But they are not generalities of unillumined vagueness; they are generalities circumscribed by history and appropriate to the largeness of the problems of government with which they were concerned. “The privileges or immunities of citizens of the United States” derived from the two aspects of citizenship in our federal system. The safeguards of “due process of law” and “the equal protection of the laws” summarize the history of freedom of English-speaking peoples running back to Magna Carta and reflected in the constitutional development of our *414people. The history of American freedom is, in no small measure, the history of procedure.
Here we are concerned with the requirement of “due process of law” in the enforcement of a state’s criminal law. Experience has confirmed the wisdom of our predecessors in refusing to give a rigid scope to this phrase. It expresses a demand for civilized standards of law. It is thus not a stagnant formulation of what has been achieved in the past but a standard for judgment in the progressive evolution of the institutions of a free society. The suggestion that “due process of law,” as guaranteed by the Eourteenth Amendment, is a compendious expression of the original federal Bill of Rights (Amendments I to VIII) has been rejected by this Court again and again and after impressive consideration. See, e. g., Hurtado v. California, 110 U. S. 516; Twining v. New Jersey, 211 U. S. 78; Brown v. Mississippi, 297 U. S. 278; Palko v. Connecticut, 302 U. S. 319.
In the Bill of Rights, Eighteenth-century statesmen formulated safeguards against the recurrence of well-defined historic grievances. Some of these safeguards, such as the right to trial by a jury of twelve and immunity from prosecution unless initiated by a grand jury, were built on experience of relative and limited validity. “Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them.” Palko v. Connecticut, supra, at 325. Others, like the freedom of the press or the free exercise of religion or freedom from condemnation without a fair trial, express rights the denial of which is repugnant to the conscience of a free people. They express those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,” Hebert v. Louisiana, 272 U. S. 312, 316, and are implied in the comprehensive concept of “due process of law.”
The Due Process Clause of the Fourteenth Amendment thus has potency different from and independent of the *415specific provisions contained in the Bill of Rights. Apart from all other considerations, how could it be otherwise without charging Madison and his great contemporaries in the framing and adoption of the Bill of Rights with writing into it a meaningless clause? The Fifth Amendment specifically prohibits prosecution of an “infamous crime” except by indictment; it forbids double jeopardy and self-incrimination, as well as deprivation of “life, liberty, or property, without due process of law.” Not to attribute to due process of law an independent function but to consider it a shorthand statement of other specific clauses in the same Amendment is to charge those who secured the adoption of this Amendment with meretricious redundancy by indifference to a phrase — “due process of law” — which was one of the great instruments in the very arsenal of constitutional freedom which the Bill of Rights was to protect and strengthen. Of course the Due Process Clause of the Fourteenth Amendment has the same meaning. To suppose that “due process of law” meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection.
A construction which gives due process no independent function but makes of it a summary of the specific provisions of the Bill of Rights would tear up by the roots much of the fabric of law in the several States. Thus, it would require all the States to prosecute serious crimes through the grand jury system long ago abandoned by many of them, see Hurtado v. California, supra, to try such crimes by a jury of twelve which some of the States have seen fit to modify or abandon, see Maxwell v. Dow, 176 U. S. 581, to enforce the privilege against self-incrimination with the technical requirements prevailing in the federal courts when States, consistently with fundamental notions of justice, have seen fit to make other arrangements, see Twining v. New Jersey, supra, and to have jury trials “In Suits at common law, where the value in controversy *416shall exceed twenty dollars,” a requirement which this Court has held over and over again for more than a hundred years does not apply to proceedings in state courts, see Livingston v. Moore, 7 Pet. 469, 551; Walker v. Sauvinet, 92 U. S. 90; Pearson v. Yewdall, 95 U. S. 294, 296. And we can hardly select one provision of the Bill of Rights and reject another, as for instance the provision of the Fourth Amendment against unreasonable search and seizure. Such a view would not only disregard the historic meaning of “due process.” It leads inevitably to a warped construction of specific provisions of the Bill of Rights to bring within their scope conduct clearly condemned by due process but not easily fitting into the pigeonholes of the specific provisions. But for contrary suggestions, it would seem too late in the day to treat seriously the argument that a phrase so laden with historic meaning as is “due process of law” can be given an improvised content of some selected provision of the original Bill of Rights.
And so, when a conviction in a state court is properly here for review, under a claim that a right protected by the Fourteenth Amendment has been denied, the question is not whether the record can be found to disclose an infraction of one of the specific provisions of the first eight amendments. To come concretely to the present case, the question is not=whether the record permits a finding, by a tenuous process of psychological assumptions and reasoning, that Malinski by means of a confession was forced to self-incrimination in defiance of the Fifth Amendment. The exact question is whether the criminal proceedings which resulted in his conviction deprived him of the due process of law by which he was constitutionally entitled to have his guilt determined. Judicial review of that guaranty of the Fourteenth Amendment inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings in order to ascertain *417whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses. These standards of justice are not authoritatively formulated anywhere as though they were prescriptions in a pharmacopoeia. But neither does the application of the Due Process Clause imply that judges are wholly at large. The judicial judgment in applying the Due Process Clause must move within the limits of accepted notions of justice and is not to be based upon the idiosyncrasies of a merely personal judgment. The fact that judges among themselves may differ whether in a particular case a trial offends accepted notions of justice is not disproof that general rather than idiosyncratic standards are applied. An important safeguard against such merely individual judgment is an alert deference to the judgment of the state court under review. But there cannot be blind acceptance even of such weighty judgment without disregarding the historic function of civilized procedure in the progress of liberty.
And so, with every respect for the contrary views of the majority of the judges below and of some of my brethren here, I cannot escape agreement with the Chief Judge of the New York Court of Appeals and two of his associates that there was not in this case a fair trial of issues vital to the determination of guilt or innocence. Considering the circumstances of Malinski’s detention, the long and continuous questioning, the willful and wrongful delay in his arraignment and the opportunity that that gives for securing, by extortion, confessions such as were here introduced in evidence,1 the flagrant justification by the prosecutor of this illegality as a necessary police pro*418cedure, inevitably calculated to excite the jury — all these in combination are so below the standards by which the criminal law, especially in a capital case, should be enforced as to fall short of due process of law.
In reviewing a state criminal conviction we must be deeply mindful of the responsibilities of the States for the enforcement of criminal laws, and exercise with due humility our merely negative function in subjecting convictions from state courts to the very narrow scrutiny which the Due Process Clause of the Fourteenth Amendment authorizes. On the other hand, in the discharge of that duty we must give no ear to the loose talk about society being “at war with the criminal” if by that it is implied that the decencies of procedure which have been enshrined in the Constitution must not be too fastidiously insisted upon in the case of wicked people. Despite the *419fact that English criminal justice has serious inadequacies and lags behind some of our penological advances, it is undeniable that on the whole it is much more effective than ours. Yet there can be no doubt, as English parliamentary proceedings and the reports of the English Court of Criminal Appeal amply prove, that practices such as this record reveals are not there tolerated. See, for instance, Inquiry in Regard to the Interrogation by the Police of Miss Savidge (1928), Cmd. 3147; 217 H. C. Deb. (5th ser. 1928), May 17, 1928, 1303 et seg. Whatever differences there may be between the situations in England and in this country in the task of law enforcement, it is intolerable to suggest that we cannot have effective law enforcement without conduct such as this record spreads before us. The notion that we must resort to such methods in order to check crime or to convict criminals has been rejected by those who have had most to do with the criminal law. After consideration of the problem, a committee of eminent lawyers reported this conclusion:
“The remedy for the ills which afflict the administration of criminal justice, whatever that remedy may be, will not be found in measures which violate law. Such expedients, so far from restoring health and vigor to the system, only aggravate and protract the disorder. Under our form of government the machinery of criminal justice depends for its force and efficiency upon the enlightened moral sense of the individuals to whom the public by their constitution and laws have temporarily entrusted its operation. And it is as unwise as it is unwarranted for these servants of the public to violate the constitution and laws in the vain hope of accomplishing useful or beneficial results.” Yearbook (1928) Association of the Bar of the City of New York, 235, 255.
These were the views of three former United States Attorneys for the Southern District of New York and three *420former District Attorneys for New York County whose experience and effectiveness as prosecutors would hardly countenance doctrinaire or sentimental views.
The Court of Appeals did not divide on the issue which is before us. The dissenting judges thought (1) that Spielfogel was an accomplice and that the conviction of Rudish was not supported by corroborative evidence; and (2) that the instruction concerning the voluntary character of the confession was not adequate.
While the robbers were escaping, the wounded policeman fired several shots, some of which hit the car in which they made their escape.
The matter was described by the prosecutor in a rather shocking manner:
“They hold men for several days. Are you satisfied with that? They are not going to let him go home, or let him get hold of a smart mouthpiece to preach about his rights and sue out writs. You want a District Attorney in this county that is worth his salt, not a powder-puff District Attorney. When you are trying a case of murder, especially murder of a police officer, you don’t go over and give him a *406pat on the back and say, 'Do you want anything? Do you want to have your lawyer or your wife or somebody else?’ In fact after that they would not even let him see Mr. Math, an assistant in our office; they would not even let him talk to a rabbi. Do you think McNally, 17 years in the Police Department, is going to let this jerk from the East Side tell him his business?”
As the Court of Appeals points out (292 N. Y. p. 375), Spielfogel and Malinski had an agreement that if either went to prison the one who was free would help take care of the other’s family. After Spiel-fogel went to Sing Sing, Malinski contributed for a while to the support of Spielfogel’s wife. When Malinski refused to pay any more, Spielfogel unburdened himself to two other convicts, Yellin and Kov-ner, “but with no intention of acting against Malinski for, curiously enough, testimony is in this record that, after knowledge of what had occurred in the shooting of Fox reached the police department and a lieutenant of police was sent to Sing Sing prison to interview Spiel-fogel, he refused to talk to the police officer. Even after that police officer had told him all that Spielfogel must have told to Yellin and Kovner he still evinced no interest in helping the police. It was only later that he consented to talk.”
New York has the rule that in capital cases a new trial may be ordered in the interests of justice though no exception was taken in the trial court. Gilbert’s Anno. Criminal Code & Penal Law (1943) § 528; People v. Jung Hing, 212 N. Y. 393, 405, 106 N. E. 105; People v. Lytton, 257 N. Y. 310, 313, 178 N. E. 290.
Mr. Justice Black, Mr. Justice Murphy, and Mr. Justice Rutledge join in Part I of this opinion.
This treatment of the matter seems to have followed the procedure adopted in New York in case of joint trials. See People v. Snyder, 246 N. Y. 491, 497, 159 N. E. 408; People v. Fisher, 249 N. Y. 419, 424, 427, 164 N. E. 336.
It is suggested that “the New York Court of Appeals unanimously sustained the jury’s verdict that the confessions were not coerced.” I do not so interpret the views of the minority of that court. The *418opinion of Chief Judge Lehman, on behalf of the three dissenting judges, will speak for itself:
“Here we are agreed that a finding by the jury that the defendant’s confession, though obtained while he was unlawfully detained without arraignment, is not against the weight of the evidence. The officers of the law deny that they beat the defendant or threatened him. Whatever may have been the motive of the police in taking Malinski to the Hotel Bossert instead of to a police station or jail, we find no basis for any inference that the police believed that the hotel was an appropriate place where a person could, without too much risk of discovery, be beaten in order to compel a confession. Nonetheless, in this case, as in People v. Mummiani (supra [258 N. Y. 394], pp. 399-400), 'the conclusion is inescapable’ that the police delayed the arraignment of the defendant ‘for the purpose of subjecting him to an inquisition impossible thereafter’ at which he might be induced to make a confession by resort to what the Supreme Court of the United States has described as ‘those reprehensible practices known as the “third degree” which, though universally rejected as indefensible, still find their way into use.’ There can be no fair trial of the issue whether the confession is voluntary where the jury is not properly informed that the detention was unlawful and that they must take that fact into consideration. That has not been done in this .case.” People v. Malinski, 292 N. Y. 360,387-388.