Following herewith is
a statement by the County Attorney in accordance with Section 47-119,
The record shows that on or about the 26th day of
June, 1953, the defendant, Arthur Thomas, after being found guilty by a
trial jury was sentenced to death by the Superior Court of the State of
Arizona, in and for the County of Cochise, for the murder of one Janie
Miskovich. The facts briefly are these:
On or about the 17th day of March, 1953, the said
defendant, Arthur Thomas, did then and there willfully, unlawfully,
feloniously, deliberately, premeditatedly and with malice aforethought,
kill and murder one Janie Miskovich, a human being. That on or about the
17th day of March, 1953, and in Cochise County, Arizona, the said
defendant, Arthur Thomas, did kill and murder one Janie Miskovich, a
human being, in the perpetration of the crime of robbery.
The defendant, Arthur Thomas, came to this area from
the State of Texas, and was employed as a day laborer in the Kansas
Settlement near Willcox, Arizona.
To: Walter Hofman, Chairman
Board of Pardons and Paroles
1628 West Jefferson
Dear Mr. Hofman
This office is in receipt of a copy of a letter
addressed to you dated October 29th, 1958, from M. Jack D. H. Hays,
United States Attorney. According to this letter a Mrs. Lorraine Woodard
stated to officers of the Federal Bureau of Investigation that Sheriff
Jack Howard of this County showed her a photograph of Arthur Thomas with
a rope around his neck and Ms. Woodard also indicates, according to the
letter, that Sheriff Howard testified during the trial that a rope had
not been placed around the neck of Arthur Thomas.
Mrs. Woodard's recollection is erroneous. An
examination of the Transcript of Testimony taken at the time of trial
shows that Sheriff Jack Howard did testify concerning the roping
incident. I refer you to Volume VII of the Reporter's Transcript,
Page1964 to Page 1983. References to the roping incident are found
throughout this section of the Sheriff's testimony. In particular on
Page 1964 at lines 5-14 the record shows that Sheriff Howard testified
that a rope was placed around the neck of Arthur Thomas at the time of
his arrest. On Page 1967, line 15, Sheriff Howard again refers to this
and again states that he took the rope off the neck of Arthur Thomas. On
Page 1976 commencing at line 16, Sheriff Howard testifies that Arthur
Thomas together with Ross Lee Cooper, was again roped and that the two
men stumbled and fell to the ground and that the Sheriff thereupon
immediately took the rope off the men. All of the testimony of the
Sheriff shows that such a roping did occur but that the Sheriff did not
participate in such ropings and immediately took the ropes off before
any harm was done and in each instance expressly informed those present
that ropes were not to be used.
I trust that these references to the Transcript will
refute the allegations of Mrs. Woodard.
Very truly yours,
LLOYD C. HELM,
Cochise County Attorney
235 F.2d 775
Frank EYMAN, Superintendent of the State Prison of Arizona, Appellee.
United States Court of Appeals Ninth
Aug. 8, 1956.
Rehearing Denied Sept. 12, 1956.
Before MATHEWS, POPE and LEMMON,
MATHEWS, Circuit Judge.
On March 16 or 17, 1953, Janie
Miskovich was murdered in Cochise County, Arizona. Thereafter, on
March 17, 1953, her body was found, an investigation was made, and
appellant, Arthur Thomas, was arrested in Cochise County by Jack
Howard, sheriff of that county.
On March 18, 1953, the sheriff
took appellant before a magistrate-- L. T. Frazier, a justice of the
peace in Cochise County-- for preliminary examination; appellant
waived such examination; the magistrate held appellant to answer to
the Superior Court of the State of Arizona in and for Cochise County
and fixed his bail at $25,000; and, appellant having failed to
furnish bail, the magistrate committed him to the custody of the
Thereafter, in the Superior Court,
an information was filed charging appellant with the murder.
Appellant was arraigned, pleaded not guilty and had a jury trial.
The trial began on June 1, 1953, and ended on June 19, 1953, when
the jury returned a verdict finding appellant guilty of first-degree
murder and fixing his punishment at death.
Appellant moved for a new trial.
The motion was denied on June 26, 1952. Thereupon, on June 26, 1953,
the Superior Court rendered judgment on the verdict, sentenced
appellant to death and issued a warrant directing the sheriff to
deliver appellant to the superintendent of the State prison of
Arizona for execution.
The sheriff did so deliver appellant on or before July 6, 1953. At
all times thereafter, appellant was a prisoner in the
superintendent's custody pursuant to the Superior Court's judgment.
Appellant appealed from the
Superior Court's judgment to the Supreme Court of the State of
Arizona, hereafter called the Arizona Supreme Court. The Arizona
Supreme Court affirmed the Superior Court's judgment on October 18,
moved the Arizona Supreme Court for a rehearing. The Arizona Supreme
Court denied that motion on November 16, 1954. On December 2, 1954,
appellant filed in the Superior Court a second motion for a new
The Superior Court made an order
denying that motion on December 18, 1954. Appellant appealed from
that order to the Arizona Supreme Court. The Arizona Supreme Court
affirmed that order on June 28, 1955.
Appellant petitioned for
certiorari to review both decisions of the Arizona Supreme Court--
the decision affirming the Superior Court's judgment
and the decision affirming the Superior Court's order denying
appellant's second motion for a new trial.
Certiorari was denied on January 16, 1956.
Thereafter, in the United States
District Court for the District of Arizona, W. Edward Morgan, acting
in behalf of appellant,
filed two applications
-- one on March 1, 1956, and one on March 9, 1956-- each praying for
a writ of habeas corpus directed to appellee, Frank Eyman, who, on
March 1, 1956, and at all times thereafter, was superintendent of
the State prison of Arizona.
The District Court did not at any
time grant appellant a writ of habeas corpus or issue an order
directing appellee to show cause why such a writ should not be
did it hold a plenary hearing on the applications.
However appellee's counsel
appeared before the District Court and, on March 9, 1956, filed with
the District Court a transcript
of all proceedings had and all testimony taken in the Superior Court
and copies of all briefs filed in the Arizona Supreme Court on
appellant's appeal from the Superior Court's judgment. Having
considered the applications, the transcript, the briefs and the
Arizona Supreme Court's decision affirming the Superior Court's
District Court on March 13, 1956, entered an order denying the
applications. From that order appellant has appealed.
Appellant contends that the
District Court erred in denying the applications without granting a
writ of habeas corpus or issuing an order to show cause and without
a plenary hearing.
Appellant being a State prisoner,
the District Court could not properly grant him a writ of habeas
corpus unless it appeared that he was in custody in violation of the
Constitution of the United States.
In determining whether appellant
was entitled to a writ of habeas corpus, it was proper for the
District Court to consider-- as it did-- the transcript of
proceedings had and testimony taken at appellant's trial, the briefs
filed on appellant's appeal from the Superior Court's judgment and
the Arizona Supreme Court's decision affirming that judgment, as
well as the applications.
The first application-- the one
filed on March 1, 1956-- stated that 'on the date of apprehension,
(appellant) was roped and putitively lynched in the presence of Jack
Howard, the then sheriff of (Cochise County);' that 'subsequent to
said roping, and while under fear and coercion, (appellant) made * *
* confessions of commission of the crime;'
and that 'one of said confessions, over the objection of counsel,
was admitted into evidence,
* * * in violation of the Fourteenth Amendment to the United States
Liberally construed, these
statements may be taken to mean that an involuntary confession of
appellant was admitted into evidence at his trial in violation of
the Fourteenth Amendment. Thus the first application may be deemed
to have raised a Federal constitutional issue, namely, whether the
Fourteenth Amendment was so violated. No other Federal
constitutional issue was raised in or by either of the applications.
The transcript showed the following
The only 'confession admitted into
evidence at appellant's trial was an oral statement made by him on
March 18, 1953, when he was taken before the magistrate (L. T.
Frazier) for preliminary examination. That statement, hereafter
called the confession, was admitted into evidence by the admission
of the magistrate's testimony concerning it. That testimony was as
'He (appellant) was there on the
charge of murder. I read the complaint to him and told him that he
had a right to a preliminary hearing in the justice court,
or he might waive that right and have his hearing in the Superior
Court. I told him he had the right to employ an attorney to assist
him in preparing his case, and that he would be allowed a reasonable
length of time for the preliminary hearing, and he said, 'I don't
need any lawyer. I am guilty. I killed the woman."
Prior to the admission of the
above quoted testimony, evidence was presented in the absence of the
jury on the issue of the voluntariness of the confession, and, as a
preliminary matter, the Superior Court held that it was voluntary.
Thereafter evidence on the issue of voluntariness was presented to
the jury, the above quoted testimony was admitted, and the issue of
voluntariness was submitted to the jury with appropriate
On his appeal from the Superior
Court's judgment, appellant assigned as error the admission of the
above quoted testimony, his contention
being that its admission violated the Fourteenth Amendment, (1) in
that the confession shown by the testimony was a plea of guilty
which he had entered when taken before the magistrate for
preliminary examination and had withdrawn by pleading not guilty in
the Superior Court; and (2) in that the confession was involuntary.
Rejecting appellant's contention,
the Arizona Supreme Court held that the confession was not a plea of
guilty, there being in Arizona no such thing as an arraignment or a
plea of guilty or not guilty in a preliminary examination; that the
above quoted testimony was properly admitted; and that the issue of
the voluntariness of the confession was properly submitted to the
Thus the Arizona Supreme Court
determined adversely to appellant the only Federal constitutional
issue raised in the habeas corpus proceeding. The District Court
accepted that determination as correct. Hence the District Court was
not required to grant a writ of habeas corpus or to issue a show
cause order or to hold a plenary hearing.
I concur. What convinces me that
the court below did not err in exercising its discretion to accept
the State court's resolution of the fact issues involved is the
admirable manner in which the State trial judge dealt with what the
Arizona Supreme Court called the 'unsavory incidents' which attended
petitioner's apprehension and arrest.
It is apparent that the trial
judge believed the testimony of a State Highway patrolman that the
county sheriff not only stood by while petitioner and another
prisoner in his custody were roped about the neck and dragged by
mounted members of a mob, but that he even said to petitioner 'Will
you tell the truth, or I will let them go ahead and do this,' or 'I
will go ahead and let them use this.'
By a ruling which, it must be
conceded, was in accordance with the highest traditions of the bench,
the trial judge held that the effects of this misconduct on the part
of the sheriff were such that a confession taken from Thomas the
following day by the county attorney, and a confession taken two
days later at the county attorney's office, must both be rejected
and excluded as coerced and involuntary. It was prior to the taking
of either of these rejected confessions that Thomas was taken before
the magistrate where he admitted his guilt.
The argument is, that if Thomas
were so terrorized by the officially condoned threats of lynching
that his later confession in the county attorney's office could not
be voluntary, then his statement to the magistrate, which followed
even more closely the lynching threats, must likewise be taken to
have been received when he was under the same psychological coercion,
particularly in view of the fact that he was then without counsel,
and only the same sheriff, and one of his deputies was present aside
from the court officials.
More precisely, the contention is
that the federal court should have taken testimony and itself
examined into this fact question, and in connection therewith have
permitted the petitioner to give his testimony. For reasons which
satisfied them counsel for petitioner did not put him on the stand
at the preliminary inquiry, in the absence of the jury, into the
circumstances of the confession. This failure to use his testimony
is something of which petitioner cannot complain here.
It is complained that at the time
of this preliminary ruling defense counsel did not know that the
highway patrolman's chief had forbidden him to talk to them, and did
not know that his testimony would show these 'unsavory incidents',
and hence the trial judge was not informed of this when he admitted
the magistrate's testimony.
But after the preliminary admission of this confession, the whole
question as to whether it was voluntary was submitted to the jury by
instructions as to which no fault is found, and the jury of course
heard the patrolman's testimony, and its verdict resolved the
question. Also, the trial judge later denied a new trial.
I am not only unable to perceive
any respect in which the State trial judge failed to afford
petitioner due process in respect to a determination of the question
of whether this confession was coerced. Those best able to judge of
this question of fact, the judge and the jury, dealt with it in a
manner which shows no vital flaw. With the demonstrated strict
regard which the trial judge obviously had for the protection of
petitioner's constitutional rights, I see no reason why the court
below should not accept his and the jury's determination.