These contentions need but brief notice. The Fourteenth Amendment does not forbid a state court to construe and apply its laws with respect to the evidence of an accomplice. There is no adequate showing that there was a corrupt bargain with Hope, and the practice of taking into consideration, in sentencing an accomplice, his aid to the state in turning state's evidence can be no denial of due process to a convicted confederate. Hope's affidavits not only were prepared after the State Supreme Court had passed upon the case and its opinion had been published but after the lapse of nearly three years from the trial. They could, therefore, be considered only in the habeas corpus case. The State contends that it had no opportunity to answer them. This is contested by the petitioner. In any event, it was stipulated that the record on appeal in the other case should be part of the record on the habeas corpus hearing; and comparison of the testimony at the trial with the allegations of the affidavits raises serious doubts as to their truthfulness. The appraisal of the conflicting evidence was for the court below. Even if its refusal to believe Hope's depositions were erroneous, the error would be no more a denial of due process than was its approval, on appeal, of the trial judge's refusal to direct a verdict on the ground of insufficiency of evidence.
1 89 P.2d 39.
2 14 Cal.2d 403, 94 P.2d 569.
3 Roby v Colehour, 146 US 153; 13 S Ct 47; Gulf and Ship Island R. R. Co. v Hewes, 183 US 66; 22 S Ct 26; Whitney v California, 274 US 357; 47 S Ct 641; Honeyman v Hanan, 300 US 14; 57 S Ct 350.
4 Judicial Code 237, as amended, 28 USC 344(a), 28 USCA 344(a).
5 Judicial Code 237, as amended, 28 USC 344(c), 28 USCA 344(c).
6 313 US 537; 61 S Ct 832; 313 US 597; 61 S Ct 956.
7 Penal Code 1111.
8 Cf. Mooney v Holohan, 294 US 103; 55 S Ct 340; 98 A.L.R. 406.
9 See Wigmore, Evidence, 3rd Ed., Vol. II, 363.
10 California Penal Code 849, 4004.
11 Id. 145, 146, 149.
12 The record does not disclose whether the application for the order was in the form of a petition; whether defendant was apprised of the motion for the order; whether he consented to its issue, or what representations were made to the court which granted the order. Section 4004 of the 1941 Code (1600 of the 1935 Code) requires a prisoner committed by a magistrate to be confined in a jail until legally discharged, and declares that if he is permitted to go at large out of the jail, except by virtue of a legal order or process, this shall constitute an escape. The only statutes we are able to find authorizing an order for the removal of a prisoner from jail are 4011 and 4012 of the Penal Code, 1941, (1607 and 1608 of the 1935 Code) which provide for cases of individual illness or a general outbreak of pestilence or disease in a prison. Section 4011 permits a removal without court order in case of fire.
13 Penal Code, 825.
14 Wigmore, Evidence, 3rd Ed., 823, 824.
15 Id. 824.
16 Sparf and Hansen v United States, 156 US 51, 55; 15 S Ct 273, 275; Wilson v United States, 162 US 613, 622; 16 S Ct 895, 899; Bram v United States, 168 US 532; 18 S Ct 183; Ziang Sun Wan v United States, 266 US 1, 14; 45 S Ct 1, 3.
17 Brown v Mississippi, 297 US 278; 56 S Ct 461.
18 Moore v Dempsey, 261 US 86; 43 S Ct 265.
19 Mooney v Holohan, 294 US 103; 55 S Ct 340; 98 ALR 406.
20 Chambers v Florida, 309 US 227, 241; 60 S Ct 472, 479.
21 Brown v Mississippi, supra, 297 US 278; 56 S Ct 461; Chambers v Florida, supra; Canty v Alabama, 309 US 629; 60 S Ct 612; White v Texas, 310 US 530; 60 S Ct 1032; Vernon v Alabama, 313 US 547; 61 S Ct 1092; Lomax v Texas, 313 US 544; 61 S.Ct. 956.
22 Cases supra, Note 21.
23 Ziang Sun Wan v United States, 266 US 1, 14; 45 S Ct 1, 3, and cases cited.
24 See Chambers v Florida; Canty v Alabama; White v Texas; Vernon v Alabama; Lomax v Texas, supra, Note 21.
1 This is rather close to a part of James' own testimony, to wit: 'He continued to question me until later on in the evening. I was very sick. I was hungry; I was tired, and I told him a thousand times that I didn't know anything about Hope's story.'
2 James' testimony at this point was that Southard, left alone with him shortly before midnight, said James had been lying to the District Attorney long enough and threatened to take him back once again to the house next door to his home where James had been questioned April 19 to 21. In response to an inquiry whether he was told his confession might be used against him, James replied: 'I didn't know whether the statement would be used against me, or not. I would rather die than to have gone back to that house and went through torture like the three days I was out there. I didn't care whether the statement was taken, or not.'