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Ashcraft et al. vs. State of Tennessee. 13 period of approximately thirty-six hours. I think counsel con- cedes that is practically the main ground upon which he rests his motion. There was no physical violence offered to the defendant Asheraft, and none was claimed.’’ He overruled the motion and received the confession. This Court, not one of whose members ever saw Ashcraft or any one of the State’s witnesses, overturns the decision by the trial judge. Moreover, a jury held Asheraft's statements imeredible. After the trial judge, out of their presence, heard the evidence and de- oem os ae | cided the confession was admissible, the jury heard the evi- ern een ee dence to decide whether the confession should be believed. Ash- a craft again testified and so did all of the witnesses for the State. Conduct of the hearing both by the judge and the prosecutors was above eriticism, The Court observes: “‘If, therefore, the question of the voluntariness of the two confessions was actually decided at all it was by the jury.’’ Is it suggested that a state consistently with the Constitution may not leave this question to the sole determination of a jury? I had supposed that the con- stitutioual duty of a state when such questions of fact arise is to furnish due process of law for deciding them. Does not jury trial meet this test? Here Tennessee, and I think very commend- ably, provided the double safeguards of a preliminary trial by the judge and a final determination by the jury. The Court’s opinion makes a critical reference to the charge of the trial judge. However, diligent counsel took no exception to the part of the charge quoted, made no request for further in- struction on the subject, and assigned no error to the charge. Even if we think the charge inadequate, does the inadequacy of a charge constitute want of due process? And if so, do we review questions as to the charge although counsel for the petitioner made no objection during the trial when the judge could have corrected the error, but after the trial was over assigned it as one of twelve reasons for demanding a new trial! No conelusion that this confession was actually coerced can be reached on this record except by reliance upon the utterly uncor- roborated statements of defendant Ashcraft. His testimony does not carry even ordinary guaranties of truthfulness, and the courts and jury were not bound to accept it. Perjury is a light offense compared to murder and they may well have believed that Ash- eraft was ready to resort to a lesser crime to avoid conviction Se ee ae ee rn