such as it was. But the majority finds it "inconceivable that such testimony could harmfully affect appellant's rights." Since the Government referred to this evidence in its opening argument to the jury, it obviously did not consider it inconceivable that it would influence the jury. Nor do I. And, if it is conceivable that the evidence may have tipped the scales in favor of conviction, we usurp the jury's function by assuming that it did not. Krulewitch v. United States, 336 U.S. 440, 445 (1949).

The confession may have been harmful to appellant in another respect as well. The Government, anticipating that the jury might be disinclined to condemn a man for throwing his wife's paramour out of his home, made a considerable point of the fact that appellant and his wife had been separated at the time of the incident. This fact was supplied by the inadmissible confession.

The other confessions discussed in the majority opinion -a written one taken from appellant the night of his arrest and an oral one shortly after 9:00 o'clock the next morning-are not before us. Both were received in evidence without objection and neither was attacked on appeal. Yet the majority considers them and concludes that they were admissible under Mallory v. United States, supra. I consider that conclusion clearly erroneous.

I hold to the view that confessions obtained through police interrogation of an arrested person before he has been arraigned under Rule 5 are inadmissible. My reasons for that view are set forth at length in Trilling v. United States, supra. I shall not repeat them here. I shall only comment upon two propositions asserted by the majority.

The majority asserts that to hold these confessions inadmissible "would be to say no statement to police is admissible after arrest-a step that the Supreme Court has not taken in the Rules and has declined to adopt in the McNabb, Mitchell and Carignan cases." This assertion completely misses the point that is involved here. To be sure the Supreme Court has not said that no statement

made to the police after arrest is admissible. The type of statement it has held admissible, however, is that which is "promptly and spontaneously" made. Upshaw v. United States, 335 U.S. 410, 413 (1949). A person who is arrested is, of course, free to unbosom himself of his guilt. If he does so, his statement may be used against him.

That is the principle embodied in the British practice to which the majority refers. To make certain that the prisoner's statement is a voluntary one, the arresting officer cautions him immediately upon the arrest that he is free to remain silent and that whatever he says may be used against him. Then the officer asks the prisoner whether he desires to make any statement. If the prisoner wishes to make a statement, he does so; but he is not subjected to an interrogation.

Only by disregarding the facts could we conclude that the practice by which these two confessions were obtained bears any resemblance to the British practice. When appellant was arrested on the night of the assault, he was questioned by Detective Reinhardt. After the interrogation, Detective Reinhardt inserted in a typewriter a prepared police form reading as follows:

Re:

Date........

You are requested to make a statement of the facts in this case to the best of your knowledge. However you are advised that you are not compelled to make a statement, are not promised any thing for making one, and do so at your own free will. If necessary, the statement you make will be used against you in Court. Having been so advised, are you willing to make a statement?

Reply by

Statement:

He typed in the date, appellant's name, and the word "Yes" in the blank for "Reply by." And under "State

ment," he typed in a condensation of his understanding of what appellant had orally admitted. Appellant then read the statement and signed it. Merely giving the prisoner an opportunity to read the boiler plate of a prepared form is no substitute for giving him a meaningful cautionary statement. Moreover, even if appellant's eighth-grade education were enough to permit him to understand from the form that he was not required to confess, that understanding would have come too late. He had already confessed orally in the course of the interrogation. No cautionary statement had been given him before that confession.

The majority also asserts that appellant's arrest occurred "past the ordinary hours for appearances" and concludes that this circumstance gave the police a license not only to postpone his arraignment until the opening of court the next day but also to question him in the interval. There are no "ordinary hours for appearances," for, as we said in Akowskey v. United States, 81 U.S.App.D.C. 353, 354, 158 F.2d 649, 650 (1946), "both by law and practice" a prisoner may be brought before a committing magistrate "at any hour." The United States Commissioner is available for night time arraignments when the Government sees fit to have a prisoner arraigned without delay. Recently a rotation system was established among the sixteen Municipal Court judges whereby at least one of them is available for arraignment of arrested persons at any hour of the day or night.3 Even the United States Attorney has abandoned the argument that a late-hour arrest justifies postponing arra evidence a confession obtained

2 See United States v. Hoffa, and my opinion in Trilling v. Un 3 Washington Post-Times Hera

nent and receiving in ough questioning the

No. 294-57 (D.D.C.), *ates, supra.

ril 4, 1958, p. A-1.

prisoner in the interval. Milton Leo Mallory v. United States (No. 14023, decided March 31, 1958); see my opinion in Trilling v. United States, supra. It is regrettable that this court should disinter an argument which has been decently laid to rest by the prosecutor, which has no basis in fact, and which disregards the fundamental rights of arrested persons.

• What justified the postponement of appellant's arraignment, according to the Government, was not the late hour of his arrest, but rather the fact that he was too drunk to be taken before a magistrate. I agree that it may be fair to postpone for a short time an arrested person's Rule 5 proceeding if he is mentally unfit, by reason of drunkenness or otherwise, to avail himself of the rights afforded him therein. But the very same considerations of fairness which call for postponing his arraignment forbid subjecting such a prisoner to an interrogation during the period of postponement. See my opinion in Milton Leo Mallory v. United States, supra.

28412 0-58 -30

EXHIBIT 15

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA, PLAINTIFF v. PAUL J. HEIDEMAN AND DANIEL R. BRENNAN, DEFENDANTS

Criminal Case No. 1123-57

OPINION

Oliver Gasch, Esq., United States Attorney; and Joel D. Blackwell, Esq., Assistant United States Attorney, for the District of Columbia, for the plaintiff. Walter Gilchrist, Esq., of Washington, D. C., for the defendant Heideman. John J. Dwyer, Esq., for Washington, D. C., for the defendant Brennan. The defendants are on trial on an indictment for robbery, in that on the night of October 24, 1957, they hailed a taxicab, entered it, and when the taxicab arrived at the destination designated by the defendants, one of them hit the driver over the head with a sock containing gravel. The driver became unconscious and while he was unconscious one of the defendants took his wallet. The Government seeks to introduce in evidence oral confessions made by the defendants to a member of the Police Department who investigated this case. The defense counsel object to their admissibility on the alleged ground that they were obtained subsequently to the time when the defendants should have been taken before a committing magistrate, and cite in support of this contention the recent decision of the Supreme Court in Mallory v. United States, 354 U. S. 449. The circumstances under which these confessions were obtained are as follows, as elicited without contradiction at the preliminary hearing on this question, conducted by the Court out of the presence of the jury. The two defendants are members of the United States Navy. At the time of the robbery the two robbers wore naval uniforms. As a result of an investigation skillfully conducted by a member of the Detective Bureau of the Metropolitan Police Department of Washington, D. C., it was ascertained that the two sailors who were passengers in the taxicab were members of the crew of the U. S. S. Tallahatche, which was then anchored near the Navy Yard. By means of further intensive investigation, which it is not necessary to summarize, the detective in charge of the case ascertained that the two defendants were members of the crew that had participated in the robbery.

The detective proceeded to the Navy Yard and explained the situation to one of the officers in charge. That officer then sent two Armed Services Police officers to the ship in order to bring the two sailors to Police Headquarters. At about three o'clock on the afternoon of October 25th, the two defendants were brought to the Robbery Squad office of the Metropolitan Police Department by representatives of the Armed Services Police, and were turned over to the custody of the Metropolitan Police Department.

The detective in charge of the case immediately telephoned to the Liaison Officer of the Armed Services Police, who had his office in the same building. The latter promptly came over to the Robbery Squad office. Within five minutes or so after the defendants were brought to Police Headquarters, the detective questioned defendant Brennan, who promptly and freely admitted that he was in the front seat of the taxicab when the cab driver was struck, and that he, Brennan, then pulled the emergency brake and brought the vehicle to a stop. This interrogation took ten or fifteen minutes.

The detective thereupon questioned the defendant Heideman, and then confronted the two defendants with each other. Heideman persisted in denying any participation in the offense. The detective proceeded to prepare the necessary papers, and after completing them again asked the defendant Heideman whether he desired to make a statement or let the matter stand as it was. Heideman then confessed that he had committed the robbery and told in some detail that he had packed some gravel in a sock in Brenan's presence; that they later hailed a taxicab and that he, Heideman, struck the taxi driver with the sock filled with gravel; and while the taxi driver was unconscious took his wallet, which turned out to be empty.

The entire proceeding from the moment of the defendants' arrival at Police Headquarters and the completion of the questioning took thirty to forty-five minutes. The defendants were then immediately booked in the Detective Bureau and taken to the Identification Bureau for fingerprinting and other routine matters. Immediately after that, they were brought before the United States