concurring in part and dissenting in part.
I agree that the case must be remanded to the District Court for a determination of the Witherspoon question, and I therefore join in Part II of the Court’s opinion. However, I believe that on remand the District Court should also consider an aspect of petitioner’s coerced confession claim which the opinions in the two courts below completely ignore, and to which this Court pays only passing attention.
The Court states that “[t]wo confessions were in fact obtained, although only the second was actually introduced into evidence.” Ante, at 479, n. 1. The first of these was obtained during several hours of interrogation in the Limestone County jail on the night of petitioner’s arrest, May 1, 1964. The second was obtained during petitioner’s re-enactment of the crime on May 6. The courts below examined the circumstances in which both confessions were obtained, and concluded that both were voluntary. In my opinion this does not exhaust the coerced confession issue.
As the Court is compelled to recognize, petitioner made inculpatory statements on, not two, but three different occasions. The first of these was on the after*486noon of May 1, preceding the interrogation at the jail.1 On that afternoon, petitioner was apprehended by law enforcement officers near the scene of the crime. According to petitioner, an officer of the Highway Patrol approached him and asked his name:
“I told him; then he told me to run because he had been wanting to kill him a nigger a long time .... [H]e told me to run, and then he throwed the rifle up like he was getting ready to shoot there.” Record Transcript 539-540.
Petitioner was taken to the scene of the crime, where he was placed, in handcuffs, in a police car alone with Highway Patrol Captain Williams. He was not given any of the Miranda warnings.2 As petitioner related:
“Captain Williams asked me what had happened, and I started to tell him; he cussed me and told *487me it wasn’t .... I told Captain Williams I didn’t do it, and he told me that I did . . . and he told me I was lying again. And he got mad and start cussing. . . . Well, he called me a little bastard and few more names .... Then he told me about if I didn’t confess, that the officers that was wanting to kill me, he wasn’t going to stop them. ... I told him if he would get me out of there and wouldn’t let them bother me, I would confess.”
Later, two other officers got into the back of the car. One of them “asked me how old I was, and I told him, and he told me I was old enough to die.” Record Transcript 544.
There were about 15 or 20 officers at the scene, some of whom were armed with rifles and shotguns. Captain Williams testified that a “pretty good size crowd” was gathering — “I would say, in my best judgment, twenty-five or thirty cars . . . and people milling around out in the road.” Record Transcript 647-648. It was under these circumstances that petitioner first admitted to Captain Williams that he had committed the crime.
Apparently because of the hostile crowd, petitioner was finally carried away from the area in a convoy of three cars; he was taken to a jail in another county as a precautionary measure. Thereafter he made what the courts have treated as the “first” confession.
The District Court was not, of course, obliged to credit petitioner’s testimony concerning the officers’ threats— some of which, but by no means all, was controverted by respondent’s witnesses. But the court did not even address itself to the testimony. Indeed, except for the oblique statement that “[t]here was no evidence . . . that the protection afforded Boulden on this occasion was inadequate,” 257 F. Supp. 1013, 1014 (1966); 385 F. 2d 102, 104 (1967), neither of the courts below alluded to, let alone examined, the circumstances or the factual and *488legal consequences of the events occurring on the afternoon of May 1, 1964.3
Without speculating as to the possible explanations for this disturbing lacuna in the opinions below, I would broaden the remand of this case so as to allow the District Court to consider whether petitioner was subjected to improper coercion on the afternoon of May 1, and what effect the events of that afternoon had on the voluntariness of the confession introduced into evidence at petitioner’s trial. See Darwin v. Connecticut, 391 U. S. 346 (1968); id., at 350 (separate opinion).
This appears not only from petitioner’s and respondent’s oral evidence at the habeas corpus hearing, but also from the transcript of the interrogation of the night of May 1, in which Captain Williams stated:
“Billy, now you understand what we are doing, we just want to talk to you, want you to tell us the truth about everything that happened today. Now you know you talked with me today in the car and I just want you to repeat it all for Lt. Watts here . . . .” Appendix 57. (Emphasis added.)
“The review of voluntariness in cases in which the trial was held prior to our decisions in Escobedo and Miranda is not limited in any manner by these decisions. On the contrary, that a defendant was not advised of his right to remain silent or of his right respecting counsel at the outset of interrogation, as is now required by Miranda, is a significant factor in considering the voluntariness of statements later made. . . . Thus, the fact that Davis was never effectively advised of his rights gives added weight to the other circumstances described below which made his confessions involuntary.” Davis v. North Carolina, 384 U. S. 737, 740-741 (1966).
It may additionally be noted that petitioner in the present case was a slight, sickly youth, with an I. Q. of 83.
In dissenting from the denial of rehearing en banc, Judge Tuttle, joined by Chief Judge Brown, focused on this issue:
“It is clear that there was an illegal interrogation and inculpatory statement obtained from this prisoner immediately following the shooting and it is clear beyond doubt that in'the eliciting of the confession subsequently admitted by the State Court as a valid confession, much stress was placed by the officers on the fact that Boulden had already confessed under the circumstances which I find completely impermissible. . . . Here, it is clear beyond doubt that what has been held to be a legal confession was obtained by the officers repeatedly calling the accused’s attention to the fact that he had already made sufficiently damaging statements and that they merely wanted him to fill in the details.” 395 F. 2d 169 (1968).