*1 Contracts, Georgia, (1933); on Sec- Williston (1965).4 In 141 S.E.2d Georgia Encyc. 7; Note con tion obligee an instrument on an can sue only Contracts, 51.” Law: Section taining and obtain clause a subordination is whether question court here provision before judgment. is a there Unless constitute their face on agreement the debentures which subordination cir- issued under the when instrument, indebtedness precludes suit case, which of this cumstances Georgia it imma is cited case holds dispute Thus there of fact. is no there seeking judgment terial in a suit except legal nothing court is before gen any outstanding claims of are there question. date on the eral creditors of the maker payment law, In the event is due on the note. debentures As a matter recovered, judgment provisions is question create a “debt” do not here agreement might applica- af contemplation the subordination within the fect the and collection ble statute. enforcement judgment, bar but would not constitute a rehearing is denied. The motion obtaining judgment. Only credi other tors can then raise subordination Judge, GEWIN, dissents. Circuit provision as an obstacle to the enforce judgment. short, ment In tax payer obligation legal here has a definite pay principal interest a fixed date, and the debentures on their face

constitute a ma valid indebtedness. The jority opinion fails to consider im this portant Georgia jurispru case in the ex UNITED of America rel. STATES judgment dence. District FLOYD, Petitioner-Appellee, Fred Court should be affirmed. WILKINS, of Attica H. as Warden Walter ON FOR PETITION REHEARING Attica, Prison, Judge, TUTTLE, Before Chief GEW- Respondent-Appellant. IN, HUGHES, Dis- No. Docket 30016. Judge. trict Appeals Court of United States Second Circuit. BY THE COURT: Argued Jan. 1966. rehearing, By appellant its motion stated, complains opinion in our we Sept. Decided 1966. the issue “We conclude that here appellee’s is decided one law.” brief, stated,

post-argument “We it is again call attention the fact that only is-

Government now states that

sue in debentures this case is whether the on * * indebtedness their face constitute clear, assumption, *. On it is argument, court noted oral question for the fact

jury, interpretation and con- since the question of struction of a contract is a Ga.Code, 20-

law for the courts. Section assumption an that collec- reference based The Court makes incidental subject agree- sub- note tion of the fact the subordination agreement. date ordination involved terminated on due ment opinion, however, seems the note. The

Moore, dissented. boys” Siff, City him.

Benjamin York shot H. New Cohen “two white City, statements, Floyd Hirsehhorn, making (Herbert York New When H. silent, brief), petitioner-appellee. his to remain not advised counsel, or that his answers Atty. Mahoney, Barry . Asst. Gen. him. He did be used could Atty. Lefkowitz, (Louis J. York *3 attorney. ask for an Hirshowitz, Asst. Gen., First A. Samuel year Soloff, Deputy old the Gen., to confessed Atty. Herrmann and Brenda Floyd. implicated brief), for re- Atty. Gen., and on the crime Asst. Floyd a detective to statement a spondent-appellant. made picked he was month later then. About MOORE, ANDER- and SMITH Before morning and up at about 3:00 Judges. SON, Circuit m. a. about 6:00 an made oral statement to a statement he made That afternoon Judge: SMITH, J. JOSEPH Attorney, of which District the Assistant Respondent, of Attica Warden In made. stenographic was record judg- appeals order and Prison, an from statements, intro- of were all which these Court District States ment trial, Floyd was denied duced of District for the Western himself and between conversation sustaining Burke, P. Chief Harold robbery concerning any prior Herrmann prisoner, corpus by state a writ of habeas merely crime, that he the and claimed to directing a reason- trial within new and along for an after- with Herrmann went affirm error and find no time. We able noon ride. train judgment. the Floyd theory prosecutor’s was that in 1962 was convicted Petitioner prose- the In summation was a lookout. felony County for the 1952 Court Bronx con- in Herrmann’s cutor observed grocer, Cohen, of murder Samuel robbery had “that the fession he said jury’s for mer- upon recommendation the was Bronx and the The Court cy, a life sentence. received grocery him went into the with when he affirmed, motion to Appeals and on of up grocer." to hold the store reargue Floyd presented first the objection to the summa- made no counsel question, Constitutional a Federal time charge noted tion. the Leave Amendment. under the Sixth he had an that Herrmann had said accom- reargue was denied. styled par- plice, whom the court “another Floyd and his co-defend- the trial of On ty per- named,” “the whom he or other confession of the latter ant Herrmann a son,” and referred statements naming Floyd, introduced, was as confessions. boy of of crime an ill-educated time accomplice. no ob- Floyd’s petition There was as an to the District jection, attempt grounds, first, a severance. or to obtain was on two viola- based only right counsel asked Petitioner’s tion Amendment Sixth witnesses,1 be instructed confront the failure binding Floyd, this was was not the Trial Court to redact Herrmann’s against Floyd, who The evidence done. as to confession so delete references defense, mainly put second, on a consisted Floyd; did a violation of by Floyd right to officials that of statements im- to counsel and the resultant accompanied the codefend- he made admission the statements gro- ant, time, who at the was 21 him. The District Court not con- did cery right crime commit- separately store where the sider to counsel ted, Herr- point, primarily and remained outside while relied instead on the entered; virtually only issue, noting mann other paucity deletion also the dying against Floyd was the declaration evidence evidence and the reference prosecutions, 1. “In all ac criminal confronted the witnesses * * * enjoy right cused shall him.” Arndt. VI. U.S.Const. (1965), People 2d 206 N.E.2d Court to statement Trial Robinson, A.D.2d N.Y.S.2d confession.2 (4th Dept. 22,1962). can Feb. There justified The District Court be no not known ex- waiver of finding record in this convic on the ist, for there can then be no “considered lacking in fundamental tion was Fay Noia, required by choice” enjoined procedure criminal fairness 391, 439, 822, 9 L.Ed.2d 837 process clause the states the due (1963). Fourteenth Amendment United States. Constitution holding And of course the direct use Herrmann’s confes Supreme Court that portions ac sions without deletion of the given by confrontation the Sixth Amend cusing Floyd, when Herrmann did applied ment is to the states the Four *4 might cross- the stand so that he be take teenth, Texas, Pointer v. State of 380 dissipation pos examined, the of and 400, 1065, U.S. 85 L.Ed.2d 923 S.Ct. 13 limiting of in sible curative effect the (1965), came after the court trial. state by prosecu the remarks of the struction Judge question Burke did not reach the summation in tor in trial the of whether Pointer v. State of Texas by charge, made fair consideration given effect so the retroactive that guilt Floyd’s the of or innocence on required lack of confrontation alone properly against admissible new trial the under Sixth Amendment as quite impossible. Moreover, him the evi applied by to the states the Fourteenth. against properly Floyd dence admissible appear It would from Johnson v. slight. Judge Voorhis, Van dis Jersey, 719, State of New 384 86 U.S. senting Ap in the New York Court of 1772, (1966) S.Ct. 16 L.Ed.2d 882 that peals, would have reversed insuf right required the confrontation ficiency of evidence to convict. by Pointer will states v. State of Texas argues The state state retroactively applied for, be “we while exhausted, remedies not are since Hunt retroactivity must determine ‘in each ley hearing, People Huntley, v. 15 N.Y.2d by looking peculiar case’ traits of 72, 838, 255 N.Y.S.2d 204 N.E.2d 179 ” specific question,’ the ‘rule in an im (1965) question is available on the portant factor is the whether rule Floyd’s use of But admissions. a Hunt “guard possibility the of unre [s] ley hearing determining is a method of liable Cf. statements.” Linkletter v. voluntary confessions, the character of Walker, 1731, 618, 381 14 85 S.Ct. U.S. not the essential of unfairness a lack of (1965); Tehan, L.Ed.2d 601 Sheriff v. through confrontation use of out of court Shott, 406, U. S. ex rel. U.S. 86 382 S.Ct. statements a co-defendant who does 459, (1966). 15 L.Ed.2d v. 453 Escobedo unlikely take the stand. It is Illinois, 478, State of U.S. 84 378 S.Ct. hearing could obtain such a or that 1758,12 (1964) L.Ed.2d 977 and Miranda questions it would reach the he raised Arizona, 436, v. of State 384 U.S. 86 S.Ct. coram, here. Nor is nobis available on 1602, (1966), may 694 L.Ed.2d be said these issues since defendant had counsel primarily procedural to focus on devices People Howard, at the trial. v. 12 N.Y. knowledge rights, to insure of Linkletter 65, 39, 2d 236 N.Y.S.2d 187 N.E.2d 113 search, unreasonable Tehan on comment (1962). rights, on assertion of held and are The state also contends retroactive. Pointer v. of State Texas dealing there was a right waiver. But York’s the rule of confrontation developed directly subsequent confrontation other hand focuses February opportunity in People reliability 1962. to test Vitagliano, 360, N.Y.2d 258 N.Y.S. such as out statements of court state- (1966) In view of Johnson v. State of New L.Ed.2d 882 the second 719, Jersey, 1772, grounds 384 U.S. 86 S.Ct. two must fail. easy prob- Herrmann, avoid with no would have been used here ments of trying sep- defendants the two lem opportunity of confrontation. arately, process in due think that we plain implication Moreover, in is practice followed joint trial forbade Carolina, of North State Davis v. here. 1761, 16 L.Ed.2d 895 86 S.Ct. U.S. Miranda, suggestion (1966), Escobedo and the warden that while rights deliberately, retroactive, as denials of counsel are not guarantee strategy, permitted are the future of trial matter given weight may trial, present Floyd joint in to which so factors determining question overall circumstances” “immature victim culprit,” prior “real cases. coercion existed whether contrast determining Furthermore, ques- doc unconvincing. here, overall So essentially being strat counsel’s the trial was tion of whether bound trine Mississippi, gave weight Judge rightly Henry unfair, egy, Burke see recognized 13 L.Ed.2d of confrontation 85 S.Ct. 379 U.S. waiver, species de (1965) Justices Pointer v. State Texas. is a concurring right. Stewart, time pends But at the Harlan on known People Pointer, of New doubt of State were result Stein “ ‘implicit of confrontation was *5 liberty,’ in concept (1953), overruled Palko later in the of ordered L.Ed. 1522 319, Connecticut, Pointer, appeared represent Federal U.S. of] v. [State law, 152, 288], law New York re- and 82 L.Ed. Constitutional S.Ct. [58 developed, so had in the Due Process Clause on confrontation flected independently there was then of said that Amendment that it cannot be Fourteenth Harlan, (Mr. right concur- a to deletion. the Justice known Sixth.” ring result, in the judgment is affirmed. The any 1070.) cannot find We S.Ct. at the to fair trial on waiver of the (dissenting): Judge MOORE, Circuit here, Floyd part of in the circumstances per- presents number of a This case Judge any fault in Burke’s determi- nor constantly arise plexing problems which confrontation, togeth- nation that lack of a trial law. After in field of criminal the here, circumstances with the other er by dis- jury the and a review verdict and to lack of Fourteenth Amend- amounted tinguished appellate of the State courts process.3 ment due trial, then on defendant the here, States, Floyd, petitioner obtains United the In Delli Paoli v. Fred by a de novo not to a trial 1 L.Ed.2d what amounts U.S. 77 S.Ct. single By ha- by judge. respondent, the (1957), use the but relied on judge corpus procedure, federal the without of a co-defendant’s beas weigh evi- deletion, precautionary instruc- can relive the State but with tactics tions, permissible dence, trial under redetermine was held light however, and the There, which, record deletion circumstances. result, should difficult, defense counsel the trial was would been adverse have mentally adopted, and sustain make simple, other massive evidence there was have judicial short, separate against objections make petitioner in- and the —in dupli- game emphasized. process not dissimilar was terest of each defendant supported— bridge. process is Here, This been diffi- not have cate deletion would theory that justifiably so—on the cult, other evidence except always rights (not slight, prosecutor existence remarks after any until effectively dissipated Blackstonian judge ef- decision) dimen- cautionary of constitutional It instructions. fect of the “ * * * ** process deprive U. due law without nor shall 3. XIV, life, liberty, property, any person S.Const. Amdt. Sec. or unless should have (a comparatively new term mean- conducted sion clearly enough produced conduct ing violation important the collective protective justify deci- bestowed the court mind of practical- sion) Constitution. invaded. States have been every ly it has been deter- where case judge properly The State trial conduct- an in- there has been such mined ed the trial accordance with all ac- usually vasion, is an extreme state cepted permitted Floyd’s rules. He coun- can be from which conclusion of facts sel to decide and to execute his has not had drawn that the defendant strategy appointing of defense without measured not fair trial. But fairness is himself, effect, counsel. compliance by, with the rules in effect and requires knowledge It little of the trial game being played, used at the time the strategy. arena to visualize that reviewing which, the court but rules transcript Floyd, makes it clear. an un- believes, should used. 16-year boy, educated old dominated particu- trial of At the time this glamorized 21-year old case, jointly defendants lar indicted innocently accompanied Herrmann on the could, court, in the discretion of the expedition. position by fatal Counsel’s jointly N.Y.Code Crim.Proc. tried. § objection, object failure to and defense permitted; 391. Motions to sever were geared presen- summation were all to this granting discretionary. also was No ob- jury appeal. tation and in his joinder jection to or motion to sever was gave charge theory scope by this full guidance, For made. the trial court’s charging could find first or Supreme law stated degree murder, manslaughter or, second States, Delli Paoli v. United U.S. course, guilty. supporters For the (1959) 294, 1 L.Ed.2d 278 jury system cases, in criminal then, available. Even the irreconcilable guilty degree verdict of of first murder assumption conflict between the *6 unjusti- dispositive, should be harsh and jury will follow court’s instructions though Judges fied it seemed to has Van assumption prejudi- and the “naive that Voorhis, my colleagues Burke and two by cial effects can be overcome instruc- here, respect to whose views in that I add jury” (Krulewitch tions to the v. United my Again, theory, own concurrence. 716, States, 69 S.Ct. jury verdict should stand unless we existed; 790) 93 L.Ed. and the dan- say Floyd’s are to case can be con- by judge ger not trial could “the veniently fitted into one or more of the jurors forget admonition cause the to categories calling trial, current for a new ” ** * they (Peo- what had been told namely, lack of counsel at the time of Robinson, 438, 446, ple v. N.Y. 8 N.E. deprivation statement of a consti- and/or 25, 28) present every 2d is ever multi- right. tutional defendant criminal case. As to lack of counsel when the state- least, given theory, virtually In ment was at the federal courts at time of apprehension, on habeas should not it would review redetermine indeed difficult be judge trial to reconcile a the State whether decision there this was a enough fatal to defect our to with recent be submitted decisions in jury. Indiviglio, they Robinson, Nor should now Cone Drum- substitute judge mond.1 their discretion as to how The statements were intended to (1966) Indiviglio, Floyd’s 1. United v. Ed.2d States 352 F.2d the second (2 Cir., 1965) ; grounds [‘second, two Robin United States v. a violation of the (2 1965) son, Cir., ; 354 F.2d 109 to counsel and the im- resultant Cone, (2 Cir., States 1965) ; 354 F.2d 119 admission of the statements made Drummond, him.’] fail.” United States must See fn. There- Cir., (2 fore, they upon 1965). rely ground “first, F.2d the first fact, majority In now concede that a violation of the Sixth Amendment witnesses, “In view of Johnson v. State of Jer- to confront for the failure of sey, U.S. the Trial to 16 L. redact con- Herrmann’s A, they X, says, with B “I went to the bank exculpatory and in mind be A, implicated. The C,” B and C are Furthermore, or their use exclu- were. following accepted practice, will judge, discretionary, depend- sion was somewhat say will or confession might statement ing upon had have the value only against X, and is not to be received opinion of counsel. A, binding B and C. considered be only problem my opinion, real In disregard jury it? ever But can Herr- around the use here centers Floyd. mann’s confession here have What could accept- judge carefully followed trial do He could scarce- did not ? done that he instructing cautionary procedure ed ly “X” with substituted an have binding Floyd, jury that it was jury any degree of effectiveness. age-old question: bringing up thus immediately “X" known who would have jury dispel mind from its can the ever charge say an- “with He was. did This fiction has has heard? that which it “another” who the other” but it clear and, if is to be a trial there become — Herr- not have rewritten He could was. testimony, upon re- will based witness my “I read went mann’s statement to Many necessity. main —an established robbery expedition unaccom- alone and or remark a witness an answer junc- sum, by anyone.” panied this In according the rules but often relevant only retrospect one there was ture during quite prejudicial disposed trials. and individual solution —severance ruling the answer: “Strike However, was made such motion disregard jury it." is instructed to and, if summoned counsel prosecu- the multi-defendant it, urged by to make the court bench frequently depends quite tion might on the well have refused counsel of a co-defendant secure being only by kept theory in the case statement, however, his conviction. The contrasting de- Herrmann could the of a crime in which relates the events guilt grees of his client or innocence may many participants. have been jury. defendant, hypothetical placed As soon as this before the Floyd.” argued legal be fiction to ers that “it is a fession so as to delete references Jersey, However, able case was Johnson of New lieve this v. State separate supra, specifically the confessions each considered must compartmentalize question defendants defendants there these this because the Aranda, prejudice them,” People argued and referred under sentence of death *7 Cal.Rptr. 353, P. in 63 407 because their confessions were received Cal.2d J.) criticizing Traynor, joint (1965, C. in one of their 2d 265 their joint They heading points bearing the dissent trials. stressed (writing Frankfurter for four Mr. “Where Severance Are De- Justice Motions for Court) nied, Delli Paoli in are Tried members of Three Defendants ju expressed opinion Jointly, Each, that wherein he the Confessions disregard Expressly Implicating Others, Are rors cannot instructions to they Objection, from their minds that which erase Admitted into Evidence over Supreme Court, heard. how have ever, The Two the Confessions Giv- and Where dis affirmed the convictions and Are Held en One of Defendants posed arguments by saying: Coerced, Requires “Pe these to be Justice that validity challenge the of their a New be Granted titioners Other Defendants grounds, Prejudicial other all of convictions on several from Effect Trial Free great care, we which including have examined with Coerced Confessions.” Jersey Supreme the claim that their confessions had of New The Court separate coerced. without un were We conclude trials would have concluded that necessary grounds problems discussion that those insurmountable created almost may judge gave administration; which be tested on this review direct Jersey judgment of the New Su the confession instructions that preme binding If Court are without merit.” defendant was one arguments other; in a be “without merit” no abuse of these there was and that support capital case, denying reversi do the severance. State discretion Johnson, error also United States A.2d 11 ble here. See 31 N.J. v. 1966). (2d Bozza, Court, petition- (1960). Supreme F.2d 206 Cir. v. danger prejudicial requiring judicial process” effect ess corrective 361, 363, implicated (People Codarre, is so co-defendant real 10 N.Y.2d might developed procedure 457, 458, well be that a 223 N.Y.S.2d 179 N.E.2d (1961)) requiring prosecutor pre- to in ad- a reveal where the issues —that squarely of trial his intention to use co- sented have not been tested vance give proceedings appropriate and to de- defendant’s State supervi- taking courts, fense counsel under the court’s would refrain from ac- we satisfy opportunity an to himself tion until es- sion the defendant was able to remedy appropriate deletions avail- advance tablish was not would be so as to eliminate con- able which the issues made he could raise might taminating presented I effect the confession now to the federal courts. alternative, or, accept foregone have on his cannot conclusion client summarily reject proved impracticable, if deletion to obtain that New York will Floyd’s separate deprived his trial. claim he was confrontation, if counsel and to legal there is no error Since there be merit to the claim. Federal found, placed must be on other reliance try anticipate courts should not what degree factors. A first murder convic- will or not do in this State courts will tion and a life sentence seems harsh for changing judicial climate —at least until along 16-year boy merely old who went oppor- the State courts have had an for an afternoon’s ride on an elevated tunity majority to act. The refer sure, jury’s train. To be this was not the People Huntley, N.Y.2d conclusion, might but its conclusion well (1965), N.Y.S.2d 204 N.E.2d 179 upon con- have been based the Herrmann pre-empted if it the entire field Floyd implication. fession its Had possible State court action. Mere- Floyd’s opportunity counsel had the ly Huntley happened because to deal might confront he with the voluntariness of does confessions enough develop able doubt as to Ap- not restrict the New York Court of participation actual to have peals examining from into and correct- brought about a conviction on a lesser ing fundamental it unfairness wherever charge, acquittal. if not an But here is found to exist as that said in again, right. no there was denial of this Codarre, supra. certainly premature It is Herrmann was the courtroom within a say this time federal court few feet of counsel and at- “unlikely” it is the New York tempt call was made to him. Herrmann give courts will not the same considera- testify did not refuse to behalf points tion to the in issue as the ma- nor, being (which after called he was jority here. not), privilege did he claim to remain silent. Therefore, would I follow our de- proceed- this habeas cisions in Bagley United States ex rel. ing granting based his of the writ LaVallee, (2 1964) Cir., 332 F.2d 890 *8 the “total effect” of Herrmann’s confes- (“if there were some doubt as to the sion, it, the court’s failure to “edit” ref- availability relief the New York erence to statements as “confes- courts, give we still would its courts the sions” and comments in summation alleged first chance to review their er- which, opinion, deprived Floyd in his long rors so have not authorita- a fair trial. tively shown that no further relief recently We held in a have series of available”); Wynn United States ex rel. cases —and with deference to the Wilkins, ; (2 Cir., 1965) 342 F.2d 777 courts of York as- New which must be McMann, United States ex rel. Martin v. high of fun- sumed have as standard (2 Cir., 1965); 348 F.2d 896 damental fairness as the federal courts expressed Herold, States ex rel. Boodie which 349 F.2d themselves willing proe- (2 Cir., 1965); to heed “denial of due and reverse with in- deny petition without

structions or renewal

prejudice reinstatement sought relief has after

York courts. Appellant, ROGERS,

Calvin America, Appellee.

UNITED STATES

No. 18279. Appeals

United States Eighth Circuit. 8, 1966.

Nov.

Rehearing Dec. Denied

Lay, dissented.