ALBERT V. BRYAN, Circuit Judge:
A judgment of conviction with a sentence of life imprisonment for murder was passed October 1, 1953 upon Herbert Smallwood, on a jury verdict in the Circuit Court of Charles County, Maryland. No appeal was taken, but vacation of the conviction and sentence was sought in the State courts through statutory remedies1 and petitions for habeas corpus, all to no avail.2 Thereupon he petitioned the Federal district court in Baltimore on January 2, 1964 for habeas corpus.
The grievance Smallwood mainly presses is the reception in evidence at trial, over his counsel's objection, of his oral confession. The incriminating statements are alleged to have been induced through psychological pressure, including the suggestion of relief of mind. This illegality is said to have tinged the trial and thus robbed it of due process. The District Court after a plenary hearing found the confession voluntary and denied the writ. Smallwood appeals.
Since the District Court's decision, Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (June 20, 1966) on certiorari from this court, has come down. The Supreme Court there took the facts as found and accepted by the lower courts and drew a contrary ultimate inference from them — "that the confessions were the product of a will overborne". The opinion noted that the Court had the duty to "make an independent determination of the ultimate issue of voluntariness". Following this procedure-prescription enjoined upon us, on assaying the facts as found by the District Judge we think they disclose an invalidating involuntariness in Smallwood's confession.
The facts, completely and fairly stated by the District Court, were these:
"Clarence Wheeler, who operated a saloon a short distance from the house where Smallwood and his brother Robert lived, was beaten to death in the early morning of May 17, 1953, in the living quarters behind the saloon. The place was then ransacked and set afire.
"Sergeant Walter Wilt of the Maryland State Police (then a trooper) began investigating the murder at 6:40 a. m. on May 17. He learned that a Luger automatic pistol and some money had been taken from the ransacked premises. He obtained a description of the pistol from the man who had sold it to Wheeler.
"While Wilt was at the scene of the crime, he was given a tip by an informer who had previously provided reliable information leading to the solution of a murder case. The informer told Wilt to check on Herbert Smallwood, and Wilt began to develop information about Smallwood\'s activities. Wilt knew that Smallwood had a criminal record and had recently been discharged from a penal institution. He learned that Smallwood had been drinking during the previous evening and had been seen around midnight at a tavern in the community where Wheeler and Smallwood lived. Wilt also learned that Smallwood had had a T-shirt washed at his sister\'s home on the morning after the murder.
"Having developed these facts, Wilt, with Lieutenant Brown, Trooper Coleman, Deputy Sheriff Cox and State\'s Attorney Barbour, went to the house about 2 P.M. on May 17 which Smallwood occupied with his brother Robert, who was also a suspect. As they approached the house, Smallwood came out, walking toward them; upon seeing the officers, he went behind the house, but shortly reappeared around the corner of the house and walked toward them. While the other men approached Smallwood, Deputy Sheriff Cox searched behind the house, found a Luger pistol, and brought it to the group in front of the house. Smallwood was arrested and taken to the police car, where the officers noticed certain stains on his shoes. They searched his shoes and found $83, including two blood-stained twenty-dollar bills, which were introduced in evidence at the trial.
"A cap which Smallwood said belonged to his brother Robert had been found at or near the scene of the crime, so Robert also was arrested. The brothers were taken to the office of the State\'s Attorney in the Charles County Court House and questioned there by Wilt, Coleman, Cox and Barbour for approximately four hours.
"On May 18 the questioning was renewed at approximately 9:00 a. m. It continued until 4:00 p. m., with a break around noon for lunch. At 4:00 p. m. Smallwood was taken back to the County Jail, given food and allowed to rest. The police noted certain discrepancies in the stories of Smallwood and his brother Robert, and suggested to them that they take lie detector tests. Both men indicated that they were willing. At 7:00 p. m. Smallwood was placed in a police car with his brother, Wilt, Coleman, Cox and Sheriff Cooksey and taken to Washington. Smallwood knew that he and his brother were being taken to Washington for the purpose of having the lie detector tests taken. During the trip, which lasted about an hour and a half, there was little or no questioning. The brothers were taken to the Metropolitan Police Headquarters in Washington about 8:30 p. m., where they were questioned further by the officers until 12:15 a. m. on the 19th. At that time Smallwood was placed in the custody of Detective James K. McCarty of the Washington police, who asked Smallwood certain preliminary questions and then gave him a lie detector test after Smallwood had signed a statement indicating that he had been advised of his constitutional rights and was taking the test voluntarily.4
"At the conclusion of the test, Smallwood was told that he was lying about certain key elements of the crime and that he should tell the truth. He replied that `the machine had the answers and that should be enough\'. At about 2:00 a. m., after further questioning by McCarty, Smallwood stopped denying that he was involved in the crime and told McCarty that he did not have any recollection of the murder because he was too drunk to remember. McCarty informed him that he had to have a recollection because otherwise the lie detector would not have registered physical reactions to certain questions. McCarty asked Smallwood if he would like to speak to one of the Maryland policemen and if he would feel more like telling the truth to them. Smallwood indicated that he would like to talk with Trooper Wilt, stating that he had been treated very nicely by him. McCarty called Wilt in and told Smallwood that Wilt was the officer in charge of the case, whom Smallwood `would have to look to, to handle the case for him in Maryland\', and that Smallwood should tell him the truth. McCarty left the room while Wilt talked to Smallwood for about 20 minues.
"Wilt testified at the trial that after the lie detector test he told Smallwood that `in view of what the machine had shown, and in view of how he must feel, with a crime in his heart, and on his mind, . . . that if he could but get that off his heart, off his mind, he would feel better\'. Smallwood asked Wilt what more they wanted when the machine had the answers. Wilt told him that they would like a statement from him, and when Smallwood indicated to Wilt that he would make a statement Wilt called McCarty back into the room. At that time Smallwood admitted being solely responsible for the crime, but still insisted that there were certain things about the case that he could not recollect.
"After this statement, McCarty asked Smallwood if he was willing to tell the story to the other Maryland officers and Smallwood agreed. McCarty called Cooksey, Cox and Coleman into the room, and Smallwood made a statement very similar to the one that he had just made to McCarty and Wilt.
"At the request of McCarty, Smallwood agreed to tell the story to his brother, and he stated in his brother\'s presence that he was solely responsible for the crime and that he was sorry. McCarty asked Smallwood to tell his brother how he had been treated from the time he was arrested `until the present\', and Smallwood said that he `had been treated as good as gold\'.
"Wilt then asked Smallwood if he would be willing to give a written statement to the same effect as the oral statement he had just made, and Smallwood agreed to do this. However, once the written statement was started, Smallwood indicated to the officers that he did not wish to continue and that he did not want to sign a statement which set forth the facts he had already told them.
"The questioning in Washington was completed sometime between 4:00 and 5:00 a. m., and Smallwood was taken back to Charles County. On the afternoon of the 19th he signed a statement prepared by Wilt to the effect that he had been well treated during his interrogation, that he had not been offered any rewards or promises, and that he had not been threatened in any way.
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"Mudd F. DeSales Mudd, Esq., counsel appointed by the State court to defend Smallwood testified at the hearing in this Court that he had been disturbed at the trial by Smallwood\'s apparent lack of concern. He therefore requested a psychiatric examination before sentence. Dr. Manfred S. Guttmacher conducted such an examination on September 2, 1953. Dr. Guttmacher concluded:
`This young colored boy is very seriously defective intellectually and can probably best be classed as a low grade moron. * * *
`This patient has sufficient intellectual capacity to know the difference between right and wrong and realize the nature and consequences of his acts. Our examination suggests that he is an amoral individual and functions at a very primitive level. There is evidence
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