(dissenting).
1. Defendant’s position is this: (1) Dr. Helfand, acting on behalf and with the approval of the district attorney, promised defendant that, if he would confess, he would not be prosecuted for first degree murder; (2) these promises induced defendant’s confession, made a few hours later on the same day, to two assistant district attorneys. Defendant contends that the State had the resultant burden of overcoming, by evidence, a powerful inference that the promises had such a continuing effect.
The trial judge so charged, saying: “I charge you that you are bound to consider the established fact that Dr. Hel-fand practiced illegal coercion upon the defendant and made authorized promises of leniency to him. The presumption is that coercion and promise of leniency continued to affect the defendant’s later confessions.” And the judge added that those confessions must not be considered as evidence of guilt “unless the prosecution has convinced you, beyond a reasonable doubt, that such coercion and promise of leniency did not extend over and affect” the later confessions.1
I think that charge was correct.2 But I think the State introduced no evidence whatever to support a finding that the effect of the promises — as distinguished from the effect of the coercion — had worn off when the defendant made the later confession to the assistant district attorneys. In short, there was a complete failure to overcome the inference of a persisting influence of the promises, and, absent countervailing evidence, neither the jury nor anyone else could rationally disregard that inference. It seems to me, therefore, that the confession to these officials was vitiated, and that to allow the jury to consider it *612amounted to a lack of due process.3 For that reason, I think habeas corpus should be granted (with power in the State, of course, to try defendant again).
2. My colleagues reach a contrary conclusion. They rest it on an assertion of fact which I think the record flatly contradicts: They say that the two doctors so disagreed in their testimony about the subject of the promises’ lasting effect as to “create a conflict in the evidence justifying submission * * * to the jury” of this crucial issue of fact. In other words, my colleagues assert that one of the doctors testified that Dr. Hel-fand’s promises did not influence the confessions to the assistant district attorneys. But here is what the State-court record shows:
(a) Dr. Bellinger, the expert called by the defendant, testified that the promises had “carried over” to the confessions made to those officials.
(b) Dr. Murphy, the expert called by the prosecutor, testified at length that the coercion exercised by Dr. Helfand had no effect on his confessions to the Police Captain Meenahan and to the defendant’s partner Herrschaft. He was then asked about the effect of the promises on the confession to the Assistant District Attorney. He answered, hesitatingly and confusedly, as follows:
“A. It is impossible to give a definite answer to that, I feel. The promises were made in the line of persuasion, just as promises were made to a little kid to be good in school, things like that. It has the same effect, but they would not be effective sufficient to incriminate a person who is trying to survive, trying to keep his skin, as it were.
“Q. In other words, the defendant— A. It would have to be — I don’t think that the effect of that would carry over, no I don’t.”
Subsequently he was recalled by the State, on rebuttal, and, in response to a question from the prosecutor, stated that the confession to Herrschaft was “free of any influence caused by any promises of immunity.” Immediately thereafter questions were put to him by the prosecutor and the judge with reference to the effect of the coercion and the promises on the confession to the assistant district attorneys. This entire colloquy reads as follows:
“By Mr. Cone (the prosecutor).
“Q. Now, doctor, this break having occurred through the effects of the defendant’s meeting with William Herrschaft, would the resultant freedom from mental coercion and from the effects, if any, of the promise of immunity, continue to the time when the defendant made his statements to the district attorney, which I read to you a few minutes ago, so that his answers to the district attorney’s questions, and statements made by the defendant, without specific question from the district attorney, were voluntary, free from mental coercion, free of any influence caused by any promise of immunity. Can you render an opinion regarding that question *613with a reasonable degree of certainty? A. I can.
“The Court: Can you state that with reasonable certainty?
“Mr. Cone: I just said that.
“Mr. Scholem: I object to the question.
“The Court: The objection is overruled.
“Mr. Scholem: As to that particular question.
“The Court: Overruled; that is one of the specific issues in this case that is being litigated.
“Mr. Scholem: Exception.
“Mr. Cone: I think, with the interruption, I had better perhaps put the question to the Doctor again.
“The Court: Did the Doctor answer the question ?
“The Witness: Yes, I believe that the subsequent interrogation by the district attorney, following the confession to Herrschaft, was given out of his free will, voluntarily, with no evidence or coercion involved. Does that take care of that?
“The Court: What about the promise?
“The Witness: I don’t know what effect the promise had. It is a thing which is something I cannot pass judgment on.
“The Court: In that particular instance ?
“The Witness: That is right. 4
“The Court: Anything else, Counsel ?
“Mr. Cone: I think that will be all.”
This is the last testimony of Dr. Murphy on that subject.
I submit that — with Dr. Bellinger testifying that the promises did carry over and Dr. Murphy, the State’s expert, specifically saying he did not “know what effect the promises had” — there was no testimony to rebut the inference of the continuing influence of the promise or promises on the confession made to the assistant district attorneys. This, then, is not a case where there is a conflict in the evidence and a State-court determination of fact resolving the conflict, a determination to which (to say the least) we would have to give heed.5
3. My colleagues, however, advance another alternative suggestion which, as I understand it, is this:
Dr. Helfand’s statements to defendant consisted of an intermixture of wheedling and threats; consequently, he gave no promise which properly can be differentiated or separated from the threats. The foregoing (my colleagues say or imply) has these consequences: (1) If it be true (as I think it clearly is) that the trial judge, the two expert witnesses, the prosecutor and defense counsel, all dealt with Dr. Helfand’s statements as including a promise or promises which should be regarded as separate from the threats, then all those persons erred. (2) The jury had before it Dr. Murphy’s testimony that the threats did not carry over to the confession to the district attorneys, and the jury so found. Therefore (my colleagues say or imply), in order to sustain the jury’s finding that the promises thus did not continue to be effective, thehé' was needed no evidence to that effect, since Dr. Murphy’s testimony of the *614carry-over of the threats sufficed for that purpose, despite the fact that he unequivocally testified he could not say whether or not the promises carried over to the confession to the district attorneys.
I think this suggestion untenable in the light of the following:
(a) Judge Leibowitz, the trial judge, no novice in a trial court,6 repeatedly— while the testimony was being received as well as in his charge — treated Dr. Helfand’s statements as involving promises not comprised in, or merely a subordinate aspect of, the threats. See the Appendix to this dissenting opinion.
(b) That Appendix also contains excerpts from Dr. Helfand’s statements to the defendant. I think they demonstrate that Judge Leibowitz correctly interpreted them as including promises distinct from, and not merged in, the threats.
(c) The highest New York Court, in its opinion on the first and second appeals — People v. Leyra, 302 N.Y. 353, 98 N.E.2d 553 and 304 N.Y. 468, 108 N.E. 2d 673 — has hinted at nothing to the contrary. My colleagues quote a portion of the opinion on the first appeal. But that opinion — 302 N.Y. 353 at page 366, 98 N.E.2d at page 560 — also contains the following:
“Another alleged infirmity in defendant’s statement to the doctor is urged upon us. It is said that this statement contained promises of leniency which might be attributed, under the circumstances, to the District Attorney. Code Crim.Proc. § 395; People v. Kurtz, 42 Hun 335; People v. Reilly, 224 N.Y. 90, 120 N. E. 113. The court at first instructed the jury that ‘There is no claim here that the District Attorney induced this defendant to make a confession upon the promise that he will not be prosecuted therefor.’ Defendant’s counsel duly excepted, and requested an appropriate charge from the court, which might eliminate premeditated murder. After some colloquy the court agreed, withdrew its original instructions in this respect, and then charged the jury in effect that they had to find a promise of complete immunity by the doctor or none at all, and only if the jury found that the former induced the confession might they acquit. While this may have been inadvertent on the part of the trial court, this instruction, to say the least, was misleading and did not cure the original instruction excepted to by defendant and which the court agreed to correct, and may well have been detrimental to defendant, particularly in the light of the doctor’s statement to him that; ‘unless you can show that in a fit of temper you got so angry that you did it * * * it’s premeditation. See?’ People v. Mleczko, 298 N.Y. 153, 162, 81 N.E.2d 65, Code Crim.Proc. § 528. Moreover, here again the jury should have been instructed to consider separately the later confessions, in the light of any promise that may have been made during defendant’s statement to the doctor. Lyons v. State of Oklahoma, supra [322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481].”
The opinion on the second trial — 304 N.Y. 468, at page 472, 108 N.E.2d 673 at page 674 contains the following, which clearly does not indicate that the promises were engulfed in or were but an aspect of the threats;
“The Trial Judge did not stop there but dealt with it in his main charge and we believe fully and adequately by pointing out again and again that as a matter of law the confession made to Dr. Helfand was not to be considered on the issue of guilt. Moreover, he was careful to instruct the jury as to the defendant’s contention leaving them to say with what force and effect the ‘coer*615cion and promise * * * did in fact carry over and into each of the subsequent confessions’ at the same time giving like instruction as to the People’s contention, leaving it for the jury to say whether the later confessions made to other persons 'were entirely voluntary and not induced by any promise of leniency.’ In this manner and by this means the defendant’s statement to Dr. Helfand was effectively insulated from the jury for consideration on the issue of guilt and was made available to them for the sole and limited purpose of saying whether or not the later statements made to others were dependent in any way on coercion or inducement, coupled with the clear and positive instruction that if so found to be, it was ‘worthless as evidence’. Such submission for separate consideration was in obedience to our specific ruling at the prior trial.”
(d) The prosecutor and the State’s attorney general — in their briefs in the State courts, in their answer to defendant’s petition for certiorari, in their brief and oral argument in this court— have never even whispered this notion that no promises were made except as part of the threats.
(e) Federal District Judge Ryan, when denying habeas corpus, said nothing remotely of the sort in his opinion.
That threats accompanied the promises did not serve to swallow up the promises, but rather to underscore them. Every parent of a young child, every owner of a pet animal, combines assurances of penalties for undesired conduct and of rewards for desired behavior; the child or pet animal recognizes the difference. Jeremy Bentham in his book, The Rationale of Reward (first published in 1811), has a chapter entitled “Of Reward and Punishment Combined,” in which he notes that, when such a combination is used by a government, each has its effect.7 If a school announces that it will flunk any student with an average grade of less than sixty and will graduate any student who betters that average, one whose average is sixty or over will be astonished if told that the second part of the school’s announcement was subsidiary to the first and therefore not to be taken seriously as a promise.
4. Relying on the testimony of Dr. Murphy and on the smooth and easy flow of the later confessions, the prosecutor convincingly argued to the jury that Dr. Helfand’s coercive efforts had worn off and that defendant, during those subsequent confessions was calm, undisturbed by emotions which the threats had stimulated.8 But the very fact that defendant was thus calm and collected in no way negates, but is entirely consistent with, the inference that he had the promises very much in mind, and, free of coercion, voluntarily confessed to the officials because of the promises. The more cool and collected he was, the more influential they became.9
*6165. I thoroughly agree with my colleagues that a federal court has a most unpleasant duty when, in a case like this, it must pass on the constitutional validity of a decision rendered by the highest court of a State, particularly in a murder case. That duty is indeed unpleasant, since past experience shows that its exercise may stir up intense local resentment.10 Nevertheless, obedient to our sworn obligation, as frequently construed by the United States Supreme Court, we must ignore the possibility of such resentment. In discharging that obligation, I think we should not be singularly astute to avoid interference with a State judgment, ordering that a human being be put to death, by resort to a determination of fact (favorable to that judgment) which the State Courts and the State officials have themselves not ventured to so much as even intimate. Moreover, to repeat, the record here does not sustain such a determination.
Appendix
1. Excerpts from statements by Dr. Helfand to defendant
“Q. If you tell us the details and come across like a good man, then we can help you. We know that morally you were just in anger. Morally .you are not to be condemned. Right? A. Right.
“Q. But you have to tell us the details, then we will know that you are above board and on the level. Otherwise, we just don’t do nothing to you and you will get the worst of it. * * *
“Q. You may as well tell us and we’ll work with you. We’ll play ball with you. We’ll help you if we can * *
“Don’t be afraid. We’re all with you. We want to help you. * * *
* * [S]o you may as well tell us and get our help. If you don’t tell us and get our help, I’ll wash my hands of you.”
“I’ll help you Buddy, I am with you one hundred percent but you got to play ball with me. * * *
“These people are going to throw the book at you unless you can show that in a fit of temper you got so angry that you did it. Otherwise they toss premeditation in and it’s premeditation. See.”
2. Judge Leibowitz’s references to promises by Dr. Helfand
“By the Court:
“Q. Dr. Bellinger, during the examination of the defendant by Dr. Helfand, Dr. Helfand on numerous occasions said to him, ‘We will help you. We will help you. Play ball with us. They will throw the book at you. Premediation.’ Do you recall all of that, which was repeated by counsel? A. Yes, sir.
“Q. In other words, Dr. Bellin-ger, they made a certain promise to the defendant, promise of leniency? A. Yes.
“Q. Now what I want to ask you is this: In your opinion, did that carry over to subsequent confessions? A. Yes, T think it did.
*617“Q. You say it did? A. I say in my opinion, it did.
“Q. It carried over, you say, to the confession made to Captain Meenahan? A. Yes, judge. * *
“Q. And did the promise also carry over to the District Attorney’s confession? A. Yes, in my opinion, it did. It was all done the same night, and in the same room.”
In his charge, the judge included the following:
“I charge you also, as a matter of law, that this so-called Helfand confession is invalid and may not be considered by you as evidence of guilt, on the further ground that Dr. Helfand, who was then acting for the District Attorney, made a promise to the defendant in order to induce him to confess, and, thus, did induce him to confess by reason of such promise; the said promise being, in effect, that if he made such confession, he, the defendant, would not be prosecuted for the capital offense of murder in the first degree, but, possibly, for a lesser crime. # * *
“In arriving at a solution of these problems, I charge you that you are bound to consider the established fact that Dr. Helfand practiced illegal coercion upon the defendant and made authorized promises of leniency to him. The presumption is that such coercion and promise of leniency continued to affect the defendant’s later confessions; unless the prosecution has convinced you, beyond a reasonable doubt, from all the credible evidence in the case, that such coercion and promise of leniency did not extend over and affect the later confession made to Meenahan. Unless you are so convinced, the later confession made to Meenahan must be entirely disregarded and not considered by you as evidence of guilt.
“Let us now turn our attention to the so called Herrschaft confession. Gentlemen, the same elements must be considered by the jury, to wit: Was the confession made? Was it voluntary? Did the Helfand coercion and the promises extend over and affect this confession? Did the prosecution sustain the burden of establishing, beyond a reasonable doubt, that the coercion and promises did not carry over and affect the Herrschaft confession ? * * *
“You must also be satisfied, beyond a reasonable doubt, that the promise of leniency made by Dr. Helfand did not carry over and induce and influence the making of this confession to the Assistant District Attorneys. * * *
“The defendant contends, with what force and effect, of course, it is for you to say, that the coercion and promise referred to did in fact carry over and into each of the subsequent confessions.
“The prosecution, on the other hand, contends that the coercion and promise by Dr. Helfand did not in anywise extend over into any of the confessions made to Meenahan, then to Herrschaft, and then to the Assistant District Attorneys; that the confessions so made to these persons were entirely voluntary and! not induced by any promise of leniency.”
. See also other excerpts from the charge in point 2 of the Appendix to this opinion.
. Except that I would substitute the word “inference” for “presumption.”
. See Lisenba v. California, 314 U.S. 219, 237, 62 S.Ct. 280, 290, 86 L.Ed. 166: “The concept of due process would void a trial in which, by threats or promises in the presence of court and jury, a defendant was induced to testify against himself. The case can stand no better if, by resort to the same means, the defendant is induced to confess and his confession is given in evidence.” (Emphasis added.) See also Brown v. Allen, 344 U. S. 443, 476, 73 S.Ct. 397, 417: “He chose to speak, and he made that choice without a promise of reward or immunity having been extended.” (Emphasis added.) Cf. Watts v. Indiana, 338 U.S. 49, 60, 69 S.Ct. 1347, 93 L.Ed. 1801.
See also Turner v. State, 203 Ga. 770, 48 S.E.2d 522; State v. Dena, 28 N.M. 479, 214 P. 583; State v. Lord, 42 N.M. 638, 84 P.2d 80, 84; People v. Rockola, 339 Ill. 474, 171 N.E. 559, 69 A.L.R. 852; State v. Ball, Mo.Sup., 262 S.W. 1043; People v. Bateman, 80 Cal.App. 151, 251 P. 335; State v. Ellis, 207 La. 812, 22 So.2d 181.
. Emphasis added.
. See, e.g., Lisenba v. California, 314 U.S. 219, 237-238, 62 S.Ct. 280, 290, “Where the claim is that the prisoner’s statement has been procured by such means” (i.e., threats or promises) “we are bound to make an independent examination of the record to determine the validity of the claim. The performance of this duty cannot be foreclosed by the finding of a court, or the verdict of a jury, or both. If the evidence bearing upon the question is uncontradicted, the application of the constitutional provision is unembarrassed by a finding or a verdict in a slate court; even though, in ruling that the confession was admissible, the very tests icei-e applied in the state court to which we resort to answer the constitutional question.” (Emphaais added.)
See Reynolds, Courtroom (1950).
. See Bentham, Works, Vol. II, 189, 197. Bentham included in the “legal or political sanction” the threat of punishment or the promise of reward, made by the government. See Works, Vol. I, 261. See also Vol. III, 203; Vol. VI, 261. Here he seems to have followed Locke; see Cairns, Legal Philosophy From Plato to Hegel (1949) 357. Ulpian, Digest I, i., 1, had said that legal obedience is secured “not only by the fear of punishment but also by the hope of reward”; see Oairns, ibid.
. In the prosecutor’s summation, he said of the confession to the district attorneys, “(E) ven Dr. Bellinger had to admit that in this entire confession, from cover to cover, there are not any more than two leading questions. All the rest flowed spontaneously. The spontaneity of that confession conclusively indicates the defendant’s guilt.”
. In its brief in this court, the State concedes “that if appellant had admitted the fact of his confessions, and had contended that he was induced to make them by the promise of immunity, that promise would have bound the district attorney to prosecute him for manslaughter only.” But, the State’s brief continues, the defendant’s position on his first trial — as shown by a portion of his testimony at *616that trial which was read to the jury at his second trial — was either that he had made no confessions at all or, if he did, that they were all procured from him during a period of unconseiouness. As defendant did not testify on the second trial, and as defense counsel in his summation did not take that position, the State seems here to be arguing that defendant is estopped by his position on the first trial. Surely that cannot be true. Nor can it be reasoned that the jury may properly have found, on the basis of defendant’s testimony on his first trial, that, during his session with Dr. Helfand, the defendant was so unconscious that he did not know Dr. Helfand had made any promises. For the judge’s charge did not leave it to the jury to make such a finding, and the judge himself did not so find. Obviously, we are in no position to do so.
. See, e. g., United States v. Shipp, 214 U.S. 386, 29 S.Ct. 637, 63 L.Ed. 1041.