Before HASTINGS, Chief Judge, and DUFFY and SCHNACKENBERG, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
This is an appeal from action*fn1 of the district court quashing a writ of habeas corpus which it had issued on the petition of Emil Reck, also referred to as "defendant", and remanding him to the custody of Joseph E. Ragen, appellee, warden of an Illinois state penitentiary.
In 1936 defendant was convicted of murder in the Criminal Court of Cook County, Illinois, and sentenced to a term of 199 years in said penitentiary, where he was accordingly imprisoned.
On the night of January 2, 1936, Dr. Silber C. Peacock, a Chicago physician, received a telephone call at his apartment. In answer to this call, he departed in his car with his instrument case. He did not return. The next evening his body was found on the floor of his parked automobile. He was dead from a bullet wound and 13 deep lacerations in his head. On Wednesday, March 25, 1936, the police arrested for bicycle theft, Reck, Durland Nash and Robert Goethe, all then 19 years of age, and Michael Livingston who was then 17 years of age. The following Saturday all four signed individual confessions of participation in the killing of Dr. Peacock. Nash and Goeth pleaded guilty and were sentenced to prison, while Reck and Livingston pleaded not guilty and were tried together, when their confessions were received in evidence over their objections. Both were sentenced to imprisonment. On writ of error, the Illinois Supreme Court, with the common law record before it, affirmed Reck's conviction, People v. Reck, 392 Ill. 311, 64 N.E.2d 526.
Proceeding under the Illinois Post-Conviction Hearing Act,*fn2 Reck filed a petition in the Criminal Court of Cook County, which was denied, which action was affirmed by the Illinois Supreme Court on November 23, 1955, 7 Ill.2d 261, 130 N.E.2d 200. That court summarized, 7 Ill.2d at page 262, 130 N.E.2d at page 201, the substance of the confessions signed by the four defendants, as follows:
"In the early evening of January 2, 1936, the four boys met and were riding in a Ford automobile driven by Jimmy Nash. They stopped at a Walgreen drug store somewhere on North Western Avenue. Robert Goeth and Nash got out of the car, went into the drug store, called Dr. Peacock and requested that he make a professional call on a sick child at 6438 North Whipple Street. The boys, while planning the robbery, had previously explored this neighborhood and found it to be dark and unfrequented. The two boys came back to the car and reported that their victim would be at the above address shortly, whereupon they drove there and parked their car nearby. Dr. Peacock arrived, parked his car in front of 6438, alighted from the car with his medicine case, and was approached by Robert Goeth who put a gun in his back and ordered him to re-enter his car, which he did. Livingston remained in the Ford and followed the doctor's car which was driven by Nash with Goeth sitting on his right and the petitioner [Reck] with the doctor in the rear seat. After they drove some distance they ordered the doctor out of his car and demanded his money. He said he didn't have any money and started fighting with Goeth. When Goeth got loose he fired two shots at the doctor, and while the doctor was lying on the ground breathing heavily, Reck finished killing him with a wooden club about one foot in length that he carried as a weapon. The boys searched the doctor's pockets and found $20, divided it equally, and left him lying on the floor of the rear seat of his car. Goeth also struck him several times with the butt of his gun while he was lying on the ground. After driving away the four separated and went their respective ways."
At page 264 of 7 Ill.2d, at page 202 of 130 N.E.2d, the court pointed out:
"It should be observed that petitioner throughout these proceedings has been represented by able and alert counsel. On the original trial a full hearing on the validity of the confession was had out of the presence of the jury. The trial judge ruled that the confession met all legal requirements. A similar hearing was had before the jury. The verdict of guilty and judgment thereon represent another determination that the confessions here under scrutiny did not emanate from coercion. * * *
"* * * The statements signed by the four boys are complete, detailed and consistent, which together with the circumstances surrounding their execution compel the conclusion that they represent the truth freely and voluntarily uttered.
"The record conclusively demonstrates that petitioner, Nash, Goeth and Livingston had been arrested originally because of their suspected involvement in many robberies and burglaries. The first three days of their confinement was entirely devoted to their being questioned about crimes independent of the Peacock murder. For only twenty-four hours before the confessions were obtained were the boys asked about the instant homicide. We are of the opinion that petitioner's constitutional rights were not infringed under the facts as disclosed by the record in this case. * * *"
At the hearing on the writ in the district court, the complete records of proceedings in the Illinois courts were introduced. In this court Reck contends that the district court erred in its construction of the fourteenth amendment as applied to this case.
The only expert testimony dealing directly with the mental status of Reck is that of Dr. Harry R. Hoffman, director of the behavior clinic of the Criminal Court of Cook County, who was called as a witness for the defense. He reported that Reck had no nervous or mental disorder, that he was of dull normal intelligence, and was not committable as insane or feeble-minded; that he was never a juvenile delinquent.
An extensive effort has been made in the briefs in this court by Reck's counsel to establish that he was a weak character with a retarded mentality, evidently with the purpose of establishing a premise for a conclusion that his confession was extorted from him. For instance, it is argued that, as he dropped out of school at the age of 16 years, when he was in the seventh grade, and as he did not take part in athletic games, but was content to be a scorekeeper, he was a weakling. However, we note that, while he may have not been interested in books, he liked manual ...