y
satisfy a longing for certainty but ignores the movements of a free
society. * * * The real clue to the problem confronting the judiciary in
the application of the Due Process Clause is not to ask where the line
is once and for all to be drawn but to recognize that it is for the
Court to draw it by the gradual and empiric process of 'inclusion and
exclusion.'"--Ibid. 27.

[928] 332 U.S. 46, 68, 71-72 (1947).

[929] Wolf _v._ Colorado, 338 U.S. 25, 39-40 (1949).

[930] Ibid. 40, 41, 44, 46, 47.

[931] Stefanelli _v._ Minard, 342 U.S. 117 (1951); Rochin _v._
California, 342 U.S. 165 (1952).

[932] 342 U.S. 117, 123.

[933] 342 U.S. 105, 168, citing Malinski _v._ New York, 324 U.S. 401,
412, 418 (1945).

[934] Ibid., 174.

[935] 332 U.S. 46, 68-123 (1947). "Of course", said Justice Douglas,
citing Holt _v._ United States, 218 U.S. 245, 252-253 (1910), "an
accused can be compelled to be present at the trial, to stand, to sit,
to turn this way or that, and to try on a cap or a coat." 342 U.S. at
179. _See_ the Self-incrimination Clause of Amendment V.

[936] Mooney _v._ Holohan, 294 U.S. 103, 112 (1935).

[937] Ibid. 110.--Because judicial process adequate to correct this
alleged wrong was believed to exist in California and had not been fully
invoked by Mooney, the Court denied his petition. Subsequently, a
California court appraised the evidence offered by Mooney and ruled that
his allegations had not been established.--Ex parte Mooney, 10 Cal. (2d)
1, 73 P (2d) 554 (1937); certiorari denied, 305 U.S. 598 (1938). Mooney
later was pardoned by Governor Olson.--New York Times, January 8, 1939.

[938] 315 U.S. 411 (1942).

[939] 317 U.S. 213 (1942).

[940] 324 U.S. 760 (1945). _See also_ New York ex rel. Whitman _v._
Wilson, 318 U.S. 688 (1943); Ex parte Hawk, 321 U.S. 114 (1944).

[941] 315 U.S. 411, 413, 421-422 (1942).--Justice Black, together with
Justices Douglas and Murphy, dissented on the ground that the Florida
court, "with intimations of approval" by the majority, had never found
it necessary to pass on the credibility of Hysler's allegations, but had
erroneously declared that all his allegations, even if true and fully
known to the trial court, would not have precluded a conviction.

In an earlier case, Lisenba _v._ California, 314 U.S. 219 (1941), the
Court, without discussion of this principle relating to the use of
perjured testimony, sustained a California appellate court's denial of a
peti