Before HASTINGS, Chief Judge, and SCHNACKENBERG and SWYGERT, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Frank J. Pate, warden of the Illinois State Penitentiary, has by this appeal brought before us another phase of the litigation which grew out of the death sentence imposed in 1956 by the Circuit Court of hancock County, Illinois*fn1, on Lloyd Eldon Miller, Jr., petitioner herein, for the murder of Janice May, an eight-year-old girl, at Canton, Illinois.
On August 20, 1963, the governor of Illinois denied Miller's petition for commutation of the death sentence.
The present appeal is by Warden Pate from the order, judgment and decree of the district court entered on December 24, 1963 which ordered a writ of habeas corpus to issue and further ordered petitioner discharged from custody under mittimus issued by the said circuit court. Said order of the district court also authorized said warden to hold petitioner for a new trial in accordance with Illinois law.
1. The present appeal is concerned principally with petitioner's charge that there is new evidence which would establish that at the original trial, with the knowledge of the prosecuting officials, Betty Baldwin, a state's witness, gave perjured testimony against petitioner.
The record shows that at the 1956 trial (Miller v. Pate, Warden, 7 Cir., 300 F.2d 414, 416, note 2), said witness testified in detail that petitioner admitted that he had committed the crime in question and that he had asked her to leave (Canton, Illinois) with him that night, but that she had refused to do so.
In 1963 upon the hearing in the district court in the above-entitled habeas corpus proceeding, the same Betty Baldwin (then known as Betty Curry) testified that petitioner did not tell her that he had killed Janice May.
The district court in ordering a new trial herein or a release of petitioner, based its action upon findings of fact, including the following:
18. The court finds that if this court had been the finder of fact, that [sic ] based upon the circumstantial evidence and the confession of petitioner it would have found the petitioner guilty without considering the testimony of Betty Baldwin, now Betty Curry, and further finds that there was ample evidence for such finding by the jury.
19. The court finds, however, that the jury did hear the testimony of Betty Baldwin and that in appearance she is a convincing witness; that from her testimony in this court she stands as a confessed perjurer either in the original trial or in this proceeding and is, therefore, a completely unreliable witness.
20. The court therefore finds that since the jury heard and considered her testimony without having before it the fact of her unreliability, this court is unable to say how the jury would have decided the case had it either heard the case without her evidence, or, if with it, the evidence of her as a confessed perjurer.
21. The court finds that this new evidence, and this alone, unknown to petitioner or any other person until this proceeding, requires the court to issue the writ of habeas corpus.
The district court specifically found that Betty at all times before the trial told the prosecuting officials that petitioner had admitted to her the murder of Janice May, and that none of said officials ever heard of any other version until Betty testified in this proceeding in the district court that she had lied and committed perjury on the original trial, after the statute of limitations*fn2 had run against a prosecution of her for perjury.
The district court further found that, if she did commit perjury in the trial,
"* * * neither the State's Attorney nor any other person associated with the case had any knowledge whatsoever that she was so doing, but, on the contrary, they all believed with good reason that she was then speaking truthfully." The district court specifically found
"* * * that neither the State's Attorney nor any other person knowingly presented any perjured testimony against petitioner or suppressed any testimony favorable to him on said trial or participated in any act that coerced or tended to coerce the confession of petitioner or abused him physically or mentally or otherwise or in any way deprived him of any of his constitutional rights under the 14th Amendment or any other constitutional rights under the federal constitution or the constitution of the State of Illinois."
The proceedings at the original trial show that the credibility and veracity of Betty Baldwin were tested at the first trial and that the jury which then heard the case necessarily passed upon her credibility. The jury then believed her. Well they might, because undisputed facts and circumstances in evidence corroborated her testimony. When she testified that petitioner asked her to leave with him, her testimony found corroboration in the fact that when she did not agree to go with him, he went alone and was captured by police officers on the other side of the state of Illinois from the town where the murder had been committed and the conversation took place. Flight has always been recognized as a fact to be considered and from which the jury may draw an inference of guilt. People v. Brothers, 347 Ill. 530, 540, 180 N.E. 442 (1932). To the same effect is Edmonds v. United States, 106 U.S.App.D.C. 373, 273 F.2d 108, 114 (1959) where the court said:
"Evidence of flight is competent as having a tendency to establish guilt. Allen v. United States, 1896, 164 U.S. 492, 499, 17 S. Ct. 154, 41 L. Ed. 528; Green v. United States, 1958, 104 U.S.App.D.C. 23, 25, 259 F.2d 180. * * *"
That Betty's credibility became an important question for the jury is indicated by several assaults upon her veracity made by the defense at the trial. At the hearing on the habeas corpus petition in the district court, in an endeavor to show that Betty's testimony at the trial was false, petitioner introduced a statement in question and answer form made by Betty on November 30, 1955 in the lie detector office at Springfield, Illinois, in the presence of Chief of Police Lindzey of Canton, and the operator of the lie detector machine. In the course of that statement she said that she had met petitioner about five weeks previously and had been out with him about seven times on dates. As a consequence thereof, petitioner's counsel characterizes as a falsehood her testimony at the trial when she said that she had known petitioner for approximately two years*fn3 We see no basis for this contention. ...