Rettig v. United States

¶5EDGERTON, Chief Judge,

¶6announced the judgment and division of the court as follows:

¶7This conviction for second degree murder is reversed and the case is remanded to the District Court for a new trial on the ground that the trial court erred in refusing to exclude police testimony concerning appellant’s alleged oral confessions that she stabbed her husband. Chief Judge' EDGERTON and Circuit Judges PRETTYMAN, BAZE-LON, FAHY, ' WASHINGTON and DANAHER vote for reversal on that ground. Circuit Judges WILBUR K. MILLER, BASTIAN and BURGER vote for affirmance; Judge BAZELON files an opinion in which Judge EDGERTON concurs. Judge DANAHER files an opinion in which Judge PRETTYMAN concurs. Judges FAHY and WASHINGTON file a separate statement. Judge WILBUR K. MILLER files a dissenting opinion in which Judges BAS-TIAN and BURGER'concur.

¶8BAZELON, Circuit Judge, with whom EDGERTON, Chief Judge, concurs.

¶9The issue is whether the rule adopted by the Supreme Court in McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, requires, exclu*917sion of the testimony concerning appellant’s oral confession. We conclude that it does, because, like the McNabbs, appellant confessed as a result of being “questioned while held in ‘plain disregard of the duty enjoined by Congress upon Federal law officers’ promptly to take them before a judicial officer.” Upshaw v. United States, 1948, 335 U.S. 410, 413, 69 S.Ct. 170, 171, 93 L.Ed. 100. And in that view of the case, we do not reach the question of legal effect of psychological mistreatment of the appellant during questioning.

¶10Rule 5(a) .of the Federal Rules of Criminal Procedure directs that arrested persons must be taken “without unnecessary delay before … [an] officer empowered to commit persons …1 Rule 5 (b) empowers the committing officer to admit such persons to bail and directs him to inform such persons of the complaint against them, their right not to make a statement and that any statement they do make may be used against them.2 Emphasing that this required procedure “checks resort to those reprehensible practices known as the ‘third degree’ … 318 U.S. at page 344, 63 S.Ct. at page 614, the Supreme Court in McNabb established a rule of evidence excluding confessions “secured through … flagrant disregard of the procedure which Congress has commanded … Id., 318 U.S. at page 345, 63 S.Ct. at page 615. In describing the circumstances in which the commitment requirements were violated there, the Court mentioned not only that the McNabbs had not been brought promptly before a magistrate, but in addition described the unremitting and obviously oppressive interrogation to which they had been subjected. Id., 318 U.S. at pages 344-345, 63 S.Ct. at pages 614-615.

¶11Thereafter, in United States v. Mitchell, the Court said, “Inexcusable detention for the purpose of illegally extracting evidence from an accused, and the successful extraction of such inculpatory statements by continuous questioning for many hours under psychological pressure, were the decisive features in the McNabb case … 1944, 322 U.S. 65, 67, 64 S.Ct. 896, 897, 88 L.Ed. 1140. Mr. Justice Reed, concurring in the result, considered this “a desirable modification of the McNabb case.” Id., 322 U.S. at page 71, 64 S.Ct. at page 899. The confession was held admissible, however, on the sole ground that there had been “no disclosure induced by illegal detention … The accused had confessed “within a few minutes of his arrival at the police station,” and his subsequent illegal detention for eight days did not “retroactively change the circumstances under which he made the disclosures.” Id., 322 U.S. at pages 69, 70, 64 S.Ct. at page 898.

¶12Four years later, the Court decided Upshaw v. United States, 1948, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100. Up-shaw had confessed after being held for interrogation without arraignment for more than 30 hours, and his confession had been admitted at the trial. This court, despite the Government’s confession of error, affirmed the conviction on the ground that there had been no coercion, physical or psychological, during *918the illegal detention.3 We stressed, as the Supreme Court pointed out, that Up-shaw’s “detention unlike McNabb’s, ‘was not aggravated by continuous questioning for many hours by numerous officers.’ ” 335 U.S. at page 412, 69 S.Ct. at page 171. In holding the confession inadmissible under the McNabb rule, the Supreme Court made clear that in Mc-Nabb it had described the oppressive interrogation simply “to show that the record left no doubt that the McNabbs were not promptly taken before a judicial officer as the law required, but instead were held for secret questioning … ” 335 U.S. at page 413, 69 S.Ct. at page 171. The Court added: “The McNabb confessions were thus held inadmissible because the McNabbs were questioned while held in ‘plain disregard of the duty enjoined by Congress upon federal law officers’ promptly to. take them before a judicial officer.” Ibid., emphasis supplied. The Court pointed out that its holding in Mitchell “was only that Mitchell’s subsequent illegal detention did not render inadmissible his prior confessions,” ibid.; and it declared that under the McNabb rule “ … a confession is inadmissible if made during illegal detention due to failure promptly to carry a prisoner before a committing magistrate, whether or not the ‘confession is the result of torture, physical or psychological ….’ ” Ibid., emphasis supplied. The dissenting justices, per Mr. Justice Reed, found the majority opinion inconsistent with the Mitchell explanation of McNabb, 335 U.S. at page 423, 69 S.Ct. at page 176, and criticized it for holding that “illegal detention alone is sufficient to bar from evidence a confession to the police during that unlawful detention.” Id., 335 U.S. at page 430, 69 S.Ct. at page 180.

¶13In United States v. Carignan, 1951, 342 U.S. 36, 72 S.Ct. 97, 96 L.Ed. 48, the Court adhered to the Upshaw statement of the McNabb rule. Id., 342 U.S. at page 43, 72 S.Ct. at page 101. It held, however, that a murder confession made by one who had been properly arraigned on an assault charge, but not for murder, was not excludable. The Court reasoned that since Carignan had been initially arraigned in conformity with Rule 5(a) “this case falls outside the reason for the rule, i. e., to abolish unlawful detention. Süch detention,” the Court said, “was thought to give opportunity for improper pressure by police before the accused had the benefit of the statement by the commissioner. Rule 5(b) [F.R. Crim.P., citing Upshaw and McNabb]. Carignan had received that information at his commitment for the assault.” Id., 342 U.S. at pages 44-45, 72 S.Ct. at page 101. Thus, Carignan implies that the McNabb rule applies to all confessions made in response to interrogation while the accused is held in violation of Rule 5(a), and hence before he has received the benefits of Rule 5(b).4

¶14In two recent state confession cases, the Supreme Court distinguished the coerced confession rule, applicable in state as well as federal courts, from the Mc-Nabb rule which applies only in the federal courts. In Brown v. Allen, the Court declared:

“Under the leadership of this Court a rule has been adopted' for federal courts, that denies admission to confessions obtained before prompt arraignment notwithstanding their voluntary character. *919… This experiment has been made in an attempt to abolish the opportunities for coercion which prolonged detention without a hearing is said to enhance.” 5

¶15In Stein v. People of State of New York, the Court likewise indicated that no explicit showing of coercion is required under the McNabb rule. The Court said:

“Petitioners confuse the more rigid rule of exclusion which, in the exercise of our supervisory power, we have promulgated for federal courts with the more limited requirements of the Fourteenth Amendment. This, we have held, did not impose rules of evidence on state courts which bind them to exclude a confession because, without coercion, it was obtained while a prisoner was uncounseled and illegally detained.” 6

¶16Prior to the Supreme Court’s reversal of our decision in Upshaw, the prevailing view in this jurisdiction had been that relentless questioning or other “aggravating circumstances” were required in order to invalidate a confession made during an illegal detention.7 In Garner v. United States, the first case to come before this court after Upshaw, we declared :

“ … we must consider it to be a settled principle that, when arresting officers unnecessarily delay taking a prisoner before a committing magistrate, any confession made to them during that delay is inadmissible; and that is true even though the confession was not induced by the illegal detention nor by any form of coercion, but was voluntarily given.”8

¶17This dictum was repudiated three years later by other dictum in Pierce v. United States.9 We said: “Further study of the Upshaw opinion causes us to conclude *920that the Court did not intend to enlarge and extend the original McNabb ruling. Its restatement of the rule should be read, we think, in the light of the facts of the McNabb case … 10 We took the same position, again as dictum, in Allen v. United States.11

¶18Since the views expressed in the Pierce and Allen cases were dicta, we are not bound by them in deciding this case. We think, with due deference, that the McNabb rule is not limited to the facts of the McNabb case. The holding in Upshaw and language in the Brown and Stein cases, decided by the Supreme Court subsequent to Pierce and Allen, indicate the contrary. Under Brown and Stein, the McNabb rule operates as a sanction against police irregularities that create an opportunity for third degree methods by compelling an accused to face his questioners incommunicado, uncounseled, and uninformed of his rights. A confession obtained through secret interrogation during illegal detention is not admissible in evidence, whether or not, as in McNabb, the questioning is not merely secret but is coercive in other respects as well.12

¶19We turn now to determine whether the confession in the present case was made in circumstances which bring it within McNabb.

¶20Appellant returned from her employ-meht as a waitress to the apartment where she lived with her husband, at 2 :- 20 a. m., Sunday, October 24, 1954. At about 6:15 a. m., she reported to police that her husband had been stabbed while asleep with her on the sofa. Police Sergeant Deenihan described what he saw when he arrived at the apartment shortly after the report. Then he testified that appellant told him that “someone came in, and she didn’t know who it was, and that he must have stabbed her husband.”

¶21At that point the court granted defense counsel’s request for a hearing outside the presence of the jury to determine whether, as the court put it, there had been an “overlong detention.” The police testimony was that, in a middle-of-the-night interrogation of appellant 16% to 19% hours after her arrest, she told the police she had stabbed her husband after they had fallen asleep together on the sofa.13

¶22At the hearing it was established that appellant was placed under arrest at 7:30 a. m., Sunday, October 24, and taken to the Homicide office. From about 8:30 to 9:00 a. m., Sergeant Deenihan questioned her. From about 9:00 to 10:30 a. m., he gave her a lie detector test to which she consented. From about 10:30 to 11:00 a. m., she was at the Identification Bureau. From about 11:00 to 11:-30 or 11:45 a. m., the Sergeant interviewed her at the Homicide office. From about 12:00 noon to 2:00 p. m., he gave her another lie detector test. From about 2:00 p. m. to “quarter of 3, 3 o’clock” he *921interviewed her again. Thereafter she was returned to the Homicide office where she remained until “some time after' 3:30.” She was then sent to the Women’s Bureau where she arrived at 4:30 p. m. At 7:45 p. m. she was interviewed for 20 or 30 minutes by an officer from Precinct No. 9, who believed she was awakened for that purpose. She was awakened some time between 12 midnight and 3:00 a. m., Monday morning, and questioned by Sergeants Deeni-han and Clark from Homicide for about 40 minutes to an hour. It was during this period of questioning, said the officers, that appellant made the oral confession. Not until approximately 11:15 Monday morning, was appellant taken before the coroner for an inquest.

¶23Upon completion of the Government’s ■evidence at the hearing, the court observed that the period between appellant’s ■arrest and oral confession was “certainly dealing with a long period of time.” But the court, the prosecutor and defense counsel thought that illegality of detention was not the sole prerequisite to ■exclusion of the confession. As the prosecutor expressed it, “a showing … of a patent denial of due process by coercion” was required in addition. Defense counsel argued that, although illegal detention in itself is insufficient, sufficient psychological pressure had been shown by the Government’s own witnesses to render the confession inadmissible as a matter of law. He subscribed to the interpretation of McNabb expressed in Mr. Justice Reed’s dissent in Upshaw v. United States, 1948, 335 U.S. 410, 414, 69 S.Ct. 172, 93 L.Ed. 100, namely, that “pressure short of coercion but beyond mere detention makes confessions inadmissible.” Id., 335 U.S. at page 429, 69 S.Ct. at page 179.

¶24On the question of whether the application of the McNabb rule is to be decided by judge or jury, the trial court disregarded McNabb itself14 and followed the line of Mr. Justice Reed’s dissent in Up-shaw.15 He determined that the evidence of coercion was not so patent as to justify a conclusion that it existed as a matter of law and that the issue was, therefore, one for the jury. Accordingly, upon the resumption of the trial before the jury, Sergeant Deenihan was permitted to relate the circumstances under which appellant was detained and to testify to the statements alleged to constitute the confession.16

¶25The case was submitted to the jury on Mr. Justice Reed’s theory that “pressure short of coercion but beyond mere de*922tention” is necessary to make the alleged confession inadmissible. The jury was told that the defense contention as to the confession was based “upon the proposition that there was a psychological pressure brought to bear on her, by virtue of the length of time that she was incarcerated; and this was somewhere from, let us say roughly, 6:30 in the morning until whenever it was, between midnight and 3 in the morning …

¶26The submission of the McNabb question to the jury was clearly erroneous. “It was for the trial judge to determine in accordance with the procedure outlined in McNabb v. United States, whether Rule 5 had been satisfied in accordance with our standards.” Watson v. United States, supra, note 7, 234 F.2d at page 48. And, on the facts of this case, that determination should have been to reject the confession testimony. The confession was secured between midnight and 3:00 a. m., 16% to 19% hours after arrest and before arraignment, after appellant had been subjected to prolonged questioning at various intervals. We would hold that in these circumstances she was not taken before a committing magistrate “without unnecessary delay” within the meaning of Rule 5(a),17 and that the confession was produced by interrogation during an illegal detention.

¶27The Government suggests that the delay in arraignment was necessary because the police are not required by Rule 5(a) to take appellant before a committing officer on Sunday. We think this view is without merit. So, apparently, did the trial court.18 The prosecutor admits that no effort was made on Sunday to take appellant before any officer empowered to commit on the theory that commissioners are unavailable on Sunday.19 But that theory is refuted, at least in this jurisdiction, by James v. Lawrence, 1949, 84 U.S.App.D.G. 355, 356, 176 F.2d 18, 19, where a preliminary hearing before a commissioner took place at 2:00 p. m. on a Sunday. No language in the rule justifies an exemption of Sunday arrests from the requirement of prompt commitment. To carve out that exemption by holding that delay is automatically “necessary” on Sundays, or at times other than the regular office hours of an available commissioner is, as the Second Circuit has suggested, “unrealistic … from both the accused’s and the court’s standpoint.” United States v. Levitón, 2 Cir., 1951, 193 F.2d 848, 854. It would mean that a “week-end or midnight arrest gives the officers all sorts of powers they do not otherwise possess … they may then delay the arraignment as much as three days if a holiday succeeds the Sunday.” Ibid.

¶28We think the issue of whether there has been an “unnecessary delay” in arraignment must be resolved, in every case, by deciding whether there have been reasonable and bona fide efforts20*923promptly to seek a commissioner or “other nearby officer.”21 And, since “every judge or justice of the United States” is empowered to take arraignments,22 making about 50 such officers available in the District of Columbia, the good faith effort cannot be confined to a commissioner. It may be that committing magistrates are not as readily available on Sundays or holidays as they are during regular working days. That factor, however, does not conclude the issue of delay, but is only one circumstance to be considered in determining whether the delay is reasonable or necessary. Another circumstance to be considered, but only in the event that it is shown that earlier arraignment was not possible, is whether the police have given the prisoner the benefit of the advisory statement which the committing officer would give under Rule 5(b).23 Here, even if it could be shown that Sunday arraignment was not possible, the delay would nevertheless be unreasonable and the detention illegal, because the record shows no such advisory statement to the appellant before the inquest.

¶29FAHY and WASHINGTON, Circuit Judges.

¶30We agree with Judge BAZELON’S analysis, in which Judge EDGERTON concurs, of the requirements of the Mc-Nabb rule and concur in reversal of the judgment of conviction on the ground that those requirements have not here been met, as well as on the ground that the evidence showed that the confession was involuntary.

¶61DANAHER, Circuit Judge

¶62(with whom Circuit Judge PRETTYMAN concurs) .

¶63We agree that the conviction must be reversed, but for reasons which will be developed in this opinion.

¶64We do not share the view expressed by Judge BAZELON that McNabb v. United States1 compels exclusion of the appellant’s oral admissions. We believe that before admissions or confessions are to be excluded under the McNabb rule, the inculpatory statements must be shown to have been induced by an illegal detention, to have been elicited through illegality, and thus to constitute fruits of wrongdoing by the officers. The disclosures must have been the result of the unlawful detention. In Hines v. United States, we affirmed without opinion after the trial judge, expressly relying upon our opinions in Pierce v. United States, infra note 11, and Allen v. United States, infra note 12, had refused to exclude confessions not shown to be the product of illegal detention. Certiorari was denied.2

¶65As we read it, McNabb is based upon the premise that when there has been inexcusable detention for the purpose of illegally extracting evidence from an accused, coupled with the successful extraction of inculpatory disclosures as a result of continuous questioning for many hours under psychological pressure, the statements of the accused so produced shall not be received.

¶66The Supreme Court has had repeated opportunities to say that its rule of evidence for federal courts means less, but it has declined to do so. Rather than automatically exclude all self implicating statements by an accused while in cus tody, the Court has said:

“By United States v. Mitchell, 322 U.S. 65, 70-71, [64 S.Ct. 896, 898, 88 *924L.Ed. 1140], this Court decided that the McNabb rule was not intended as a penalty or sanction for violation of R.S.D.C. § 397, a commitment statute. The same conclusion applies to Rule 5, Federal Rules of Criminal Procedure.”3

¶67It is true that at one time, as when the Mitchell case 4 was before us, some members of this court, like some members of other Courts of Appeals, thought the Mc-Nabb rule must be rigidly defined to bar confessions received during a period of unlawful detention, irrespective of whether or not the detention produced the disclosures. Chief Judge Groner noted the distinction thus in Boone v. United States 5:

“But on appeal to the Supreme Court our view was rejected and the Supreme Court itself interpreted its language in the McNabb case wholly contrary to the position now taken by counsel for appellant in this case. In the Mitchell case the Supreme Court said, as it had said in the Mc-Nabb case, that inexcusable detention for the purpose of extracting evidence from the accused is both wrong and unlawful, but pointed out that while this is true, detention, standing alone, does not affect the admissibility of the confession except in a case in which it appears that the disclosure is induced by it. In short, that unlawful detention, without more, does not require rejection of a confession otherwise-admissible.”

¶68After the Boone opinion had been written, we were again faced with the problem in Garner v. United States.6 There,, we reverted to our first interpretation of the so-called McNabb rule, thinking we were required to do so because of the-opinion in Upshaw v. United States, infra note 17, which was subsequent to our Boone case. We considered in the Garner opinion the applicability of the new Federal Rules of Criminal Procedure-which had become effective as of March-21, 1946. We decided that Rule 5(a)’ does not command that an arrested person be taken before a magistrate “forthwith,” 7 and that the Rule contemplates-, circumstances out of which there well' may be the possibility of necessary delay. It was decided that the delay in arraigning Garner was not unreasonable andi that the confession had been properly-received.8

¶69While there were yet other cases raising comparable questions, both here and’ in other circuits, many, perhaps most of' them, have been cited in Tillotson v. United States9 and Watson v. United; States.10 Without further elaboration^ we come to Pierce v. United States.11 Once again we considered whether or not an illegal detention which did not induce-the accused to disclose his guilt made his-confession inadmissible. The opinion by *925Judge WILBUR K. MILLER explained the gradual crystallization of the true rule to govern such situations. Judge BAZELON concurred in the result, having reached the conclusion that the confession was not made either during or because of unnecessary delay in presenting the accused before a committing magistrate.

¶70The question was again presented in Allen v. United States.12 Judge WILBUR K. MILLER wrote:

“For the reasons stated in Pierce v. United States … we think the McNabb rule … is that illegal detention before presentment to a committing magistrate, standing alone and without more, does not invalidate a confession made during its contimiance, unless the detention produced the disclosure.”13(Emphasis supplied.)

¶71Again Judge BAZELON concurred in the result since he found there had been no unnecessary delay in arraignment.

¶72The rule of the Pierce and Allen cases has since been followed by this court, and, in essence, by other circuits.14

¶73Some of our colleagues would strike down the Pierce and Allen cases. They read the McNabb case as commanding that result, not because of express language in the McNabb opinion, but by virtue of what someone says it says. Perhaps any such proposed test can be countered in like vein. For example, Mr. Justice Frankfurter said: “Inexcusable detention for the purpose of illegally extracting evidence from an accused, and the successful extraction of such incul-patory statements by continuous questioning for many hours under psychological pressure, were the decisive features in the McNabb case which led us to rule that a conviction on such evidence could not stand.” 15 He added, having explained the Court’s own rationale, “We adhere to that decision and to the views on which it was based.”16 Again, in Upshaw v. United States,17 Mr. Justice Black pointed out that the accused had not been arraigned because the officer thought there was not a sufficient case for the court to hold him, and had he been arraigned, the officer would no longer have been able to question him. Thus, the confessions were the fruits of wrongdoing by the police since the petitioner had been “illegally detained for at least thirty hours for the very purpose of securing these challenged confessions. He thereby refutes any possibility of an argument that after arrest he was carried before a magistrate ‘without unnecessary delay.’ ”18

¶74It may prove of interest to note that in the McNabb opinion the Court had said of the accused, “They were not brought before a United States Commissioner or a judge” 19 and again, “He was not taken before a United States Commissioner, or a judge.” 20 When the case went back for a new trial, the facts as to the time of arraignment were brought out. The Court of Appeals concluded that the record sustained a finding that the accused had been arraigned so that

“this circumstance is now out of the case and there is no substantial *926evidence that the confessions were elicited by means of illegal procedure. As pointed out in the Me-Nabb case, supra, 318 U.S. [at] page 346, 63 S.Ct. [at] page 615, 87 L. Ed. 819, ‘The mere fact that a confession was made while in the custody of the police does not render it inadmissible.’ This quotation was repeated in United States v. Mitch■ell, 64 S.Ct. 896, 899. The Mitchell •opinion embodies a clarification of its MeNabb opinion.

“We think that the circumstances in the present setting do not compel the exclusion of confessions upon the ground that they were involuntary.”' 21

¶75’Thus the McNabbs were convicted, and •certiorari was denied.22

¶76Judge PRETTYMAN and I are satisfied that since the adoption of the Federal Rules of Criminal Procedure, the application of Rule 5 is to be governed by the Pierce and Allen cases. By applying, ■not disparaging, the rule to be deduced from Pierce and Allen, we have concluded that the conviction in this case must be reversed.

¶77The record shows that the defense •voiced timely objection and moved to ex-elude the appellant’s allegedly inculpatory admissions. The trial judge properly conducted an extensive hearing out •of the presence of the jury. But it was the duty of the trial judge thereupon to ■determine preliminarily whether the motion to exclude should be granted or •denied,23 his ruling to depend upon the facts and circumstances shown, within the Pierce and Allen rule. Assuming, •without deciding, that there was no unnecessary delay in arraigning the appellant, there still remained the question of •whether or not “the detention produced the disclosure.” *

¶78We are of the view that upon the face of events, the motion to exclude the admissions should have been granted. The record develops the setting thus:

¶79Appellant had worked as a waitress on a night shift. She came home from work at about two o’clock on a Sunday morning and, according to her testimony, did some household chores, going to bed between three-thirty and four o’clock in the morning. She was alone in the apartment with her husband. At about six o’clock she aroused a neighbor with word that her husband had been stabbed. From then on she was in the custody of the police. What sleep she had had between four o’clock and six o’clock is a guess (she said she had none), but it could not have been more than two hours. She was questioned at intervals all day Sunday. She was twice given polygraph tests, each test lasting about an hour or an hour and a half, both being “inconclusive,” due to her distraught condition. She had no food, having declined lunch. Finally at about eight o’clock: Sunday evening she was taken to a room at the Women’s Bureau and went to bed. Sometime after one o’clock Monday morning she was aroused and taken downstairs to a witness room or conference room in the Women’s Bureau, and the questioning by police officers began. This questioning lasted about three-quarters of an hour, or possibly an hour. At this interview she is said to have confessed orally.

¶80At no time was she warned that anything she said would be used against her, and at no time was she advised of her right to counsel. She at no time saw any of her family or friends.

¶81At all times after early Sunday morning she was obviously the prime suspect in the case, having been alone in the apartment with her husband, having given the alarm, and having made conflict*927ing statements to the police from time to time. By her own statement she was always a material witness.

¶82If we assume this woman had worked eight hours on the Saturday night shift and had been awake an hour prior to going to work, she had had no more than two hours’ sleep in twenty-seven hours when she went to bed at the Women’s Bureau Sunday evening.

¶83It counters our experience and the teaching of the cases, to believe that the police can question such a person, distraught from the circumstances, without food, without rest, off and on from seven o’clock in the morning to eight o’clock at night, and then wake her in the middle of the night, take her out of bed to a conference room, question her again, without warning and without advice as to counsel, and then obtain inculpatory admissions, free from taint. There was no reason for not warning her or advising her of her right to counsel. There was in this case no reason for not booking her, either on probable cause for suspicion of murder or as a material witness.24 There was no conceivable reason for waking her up at one o’clock in the morning for further questioning except to get a confession or admissions before the morning hour arrived when the officers knew they would have to charge her before a committing magistrate. That the admissions were the product of her detention under the circumstances narrated, seems to us to be perfectly plain, and the disclosures fail to survive the interdiction of the Pierce and Allen rule. The failure of the trier so to rule requires that the conviction be reversed.25

¶110WILBUR K. MILLER, Circuit Judge,

¶111with whom BASTIAN and BURGER, Circuit Judges, concur, dissenting.

¶112Between 5:30 and 6:00 a. m.1 Sunday, October 24, 1954, Robert Rettig was. stabbed twice as he lay asleep on a couch in the living room of his second-floor apartment. He died soon thereafter. The two stab wounds, either of which would have caused death, were inflicted with a knife or dagger owned by Rettig himself which he kept, in its. sheath, as an ornament on a television table in the living room. His common-law wife Katherine was indicted for the killing and a jury found her guilty of' second degree murder. She appeals, and a majority of the court reverse her conviction. I dissent.

¶113The principal reason for reversal advanced by the appellant is that an oral confession, attributed to her in the testimony of two police officers, was inadmissible because they said it was given after midnight Sunday when she had been in custody since 7:30 that morning without having been presented to a committing-magistrate. In her testimony she did not. attribute any coercive effect to the delay in arraignment, nor did she say the-alleged confession was induced or extorted by any form of physical or psychological persuasion or coercion. She does not. make such claims in argument here. Thus she did not say from the stand and does not say now that she confessed involuntarily. Instead, she stoutly swore she did not confess in the post-midnight interview.2 She is therefore in a poor position to rely on the McNabb rule3 and assert that, had she been more-promptly arraigned, she would not have-confessed. Her testimony makes equally-*928difficult the position of those who say she confessed involuntarily.

¶114Nevertheless, despite the inconsistency of doing so, on appeal the appellant invokes the so-called McNabb rule. Solely because the officers were permitted to testify that Mrs. Rettig told them she stabbed her husband, my brothers of the majority reverse her conviction. Some of them think the confession was the result of pressures (which she denied wére ever applied to her) and was therefore involuntary, and others think it was inadmissible under the doctrine of the Mc-Nabb case, because of the mere lapse of time before arraignment plus what they regard as aggravating circumstances short of coercion. These two theories differ sharply, as will appear.

¶1151. If the confession was involuntarily given, its admission in evidence violated Mrs. Rettig’s constitutional right to due process, and it is not necessary to consider whether the other evidence was sufficient to sustain the jury’s verdict. This is because the reception of a confession which denies a constitutional right requires reversal, even though the evidence apart from the confession was sufficient to justify the verdict of guilt. Brown v. Allen, 1953, 344 U.S. 443, 475, 73 S.Ct. 397, 97 L.Ed. 469; Malinski v. People of State of New York, 1945, 324 U.S. 401, 404, 65 S.Ct. 781, 89 L.Ed. 1029; Lyons v. State of Oklahoma, 1944, 322 U.S. 596-597, 64 S.Ct. 1208, 88 L.Ed. 1481; Bram v. United States, 1897,168 U.S. 532, 540-542, 18 S.Ct. 183, 42 L.Ed. 568. This is true in federal as well as in state courts.

¶1162. On the other hand, if Mrs. Rettig’s confession was merely inadmissible under the McNabb rule prescribed for federal courts,4 no constitutional right was involved. The Supreme Court said in the McNabb opinion, and has repeated several times since, that the federal rule does not arise from constitutional sources.5 That being true, a reviewing court which holds a confession inadmissible because it was obtained in violation of the McNabb rule should not reverse the conviction on that account unless it appears that, with the confession excluded, the remaining evidence was insufficient to support'the jury’s finding of guilt. This is the indirect teaching of the McNabb and Upshaw cases, in both of which the Supreme Court was at pains to point out that the confessions constituted the basis of the conviction. The Supreme Court said in the McNabb case, 318 U.S. at page 338, 63 S.Ct. at page 612, “Conced-edly, the admissions made by Freeman, Raymond and Benjamin [McNabb] constituted the crux of the Government’s case against them, and the convictions cannot stand if such evidence be excluded.” Likewise, in its opinion in Up-shaw v. United States, 1948, 335 U.S. 410-411, 69 S.Ct. 170, the Court said, “Pre-trial confessions of guilt without which petitioner [Upshaw] could not have been convicted were admitted in evidence against his objection that they had been illegally obtained.” And the Court said in a footnote at page 411 of 335 U.S., at page 170 of 69 S.Ct., “After the evidence was all in, the trial judge stated that without the confessions there was ‘nothing left in the case.’ ” Cf. Garner v. United States, 84 U.S.App.D.C. 361, 384,174 F.2d 499, 502, certiorari denied 1949, 337 U.S. 945, 69 S.Ct. 1502, 93 L.Ed. 1748.

¶117I cannot concur in the reversal of this conviction on either of the two theories just described and differentiated, for reasons which will be stated separately with respect to each.

¶1181. In my opinion, the confession was not involuntarily given and so was not excludable on constitutional grounds. As I have said, Mrs. Rettig did not claim the confession was obtained from her by any form of coercion or inducement. She simply said she did not confess, thus in effect saying she had not yielded to any sort of pressure. From this I think it follows that the corifession cannot logically be said to have been involuntarily *929given, unless it ought to be held as a matter of law that the detention on Sunday and the events and circumstances of that day which preceded the confession were in themselves so oppressive as to induce an involuntary admission of guilt, even though the appellant herself did not claim she had been coerced thereby.

¶119I do not think the delay in arraignment and the events of Sunday amounted per se to coercion. The Supreme Court’s treatment of the McNabb case confirms me in that view. For the facts assumed and described in the McNabb opinion showed much more prolonged delay in arraignment, much more intensive questioning and, in general, much more psychological pressure than the facts here disclose. Yet the Supreme Court did not hold the McNabb confessions involuntary, and did not reverse the convictions on constitutional grounds. It expressly said its decision was not based on the violation of any constitutional right. Hence I think the experienced trial judge was correct when, after an extensive hearing with the jury absent, he refused to rule that Mrs. Rettig’s confession was involuntary as a matter of law on the face of the factual situation, but left it to the jury to decide the question of voluntariness. Cf. Tyler v. United States, 1951, 90 U.S.App.D.C. 2, 6, 193 F.2d 24, 28, certiorari denied 1952, 343 U.S. 908, 72 S.Ct. 639, 96 L.Ed. 1326. My conclusion is there is no basis for reversal on the ground that the confession was obtained in violation of the appellant’s constitutional rights.

¶1202. Next to be considered is the second theory, adopted by some of the majority, that the McNabb rule was violated here, from which they seem to think reversal automatically follows. My brothers Edgerton and Bazelon say, “The issue is whether the rule adopted by the Supreme Court in McNabb v. United States … requires exclusion of the testimony concerning appellant’s oral confession.” I suggest they do not state the issue fully. One question is, as they say, whether Mrs. Rettig’s confession was inadmissible under the McNabb doctrine. But if so, there arises immediately the question whether the conviction should therefore be reversed. For, as I have pointed out above in differentiating the two majority theories, reversal does not necessarily flow from a violation of the McNabb rule of evidence.

¶121Before taking up the two questions which constitute the McNabb issue here, it will be helpful to state in the language of the Supreme Court what the rule is and what it is not. Before doing so, I interject that we of the minority who would affirm are in accord with Judge Danaher’s analysis of the McNabb rule and his approval of the Pierce and Allen cases.

¶122In United States v. Mitchell, 1944, 322 U.S. 65, 67, 64 S.Ct. 896, 897, the Court described the McNabb ruling by saying:

“* # * Inexcusable detention for the purpose of illegally extracting evidence from an accused, and 'the successful extraction of such in-culpatory statements by continuous questioning for many hours under psychological pressure, were the decisive factors in the McNabb case which led us to rule that a conviction on such evidence could not stand.”

¶123And Mr. Justice Reed, concurring in the result of the Mitchell opinion, said, 322 U.S. at page 71, 64 S.Ct. at page 898:

“As I understand McNabb v. United States, 318 U.S. 322, 63 S.Ct. 608, 87 L.Ed. 819, as explained by the Court’s opinion of today, the Mc-Nabb rule is that where there has been illegal detention of a prisoner, joined with other circumstances which are deemed by this Court to be contrary to proper conduct of federal prosecutions, the confession will not be admitted. Further, this refusal of admission is required even though the detention plus the conduct do not together amount to duress or coercion. … ”

¶124In Upshaw v. United States, 1948, 335 U.S. 410, 413, 69 S.Ct. 170, the Supreme *930Court6 said the McNabb rule is “that a confession is inadmissible if made during illegal detention due to failure promptly to carry a prisoner before a committing magistrate, whether or not the ‘confession is the result of torture, physical or psychological ….’ ”7

¶125With respect to the Upshaw statement of the McNabb rule we said in Garner v. United States, 84 U.S.App.D.C. 361, 364, 174 F.2d 499, 502, certiorari denied 1949, 337 U.S. 945, 69 S.Ct. 1502:

“Under this rule, however, there still remains open in every case the question whether the detention was illegal; that is, whether the delay in presenting the prisoner to a magistrate was unnecessary. For Rule 5(a) of the Federal Rules of Criminal Procedure does not command that an arrested person be taken before a magistrate ‘forthwith.' It provides that the officer ‘shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States.’ This phrasing envisages the possibility of necessary delay. It would be an extension of the Up-shaw opinion to construe it as holding that a confession is inadmissible if given after delay in presenting the defendant to a magistrate because such a construction would completely ignore the word ‘unnecessary’ in Rule 5(a).”

¶126In this case, a murder suspect was taken into custody about 7:30 Sunday morning and was carried before a committing magistrate at 9:00 o’clock Monday morning. I do not think this delay was prima facie “unreasonable” within the meaning of Rule 5(a). Mrs. Rettig made no effort to prove that it was, although the burden of doing so rested upon her. Tillotson v. United States, 231 F.2d at page 738; Pierce v. United States, 91 U.S.App.D.C. at page 23, 197 F.2d at page 193; White v. United States, 5 Cir., 1952, 200 F.2d 509, 512; United States v. Leviton, 2 Cir., 1951, 193 F.2d 848, 854; United States v. Walker, 2 Cir., 1949, 176 F.2d 564, 567. I know of no requirement that committing magistrates be on duty all day Sunday. The police worked all that day tracking down leads, such as appellant’s statement that an unknown intruder killed her husband, which might have exonerated her. Nor does it appear that arraignment was delayed in order to extract the confession. Nobody said, as did an officer in the Upshaw case, that the suspect was held for that purpose. For these reasons, it is my opinion that Mrs. Rettig’s confession was not barred by the McNabb rule.8

¶127*931In our zeal to protect the appellant under the McNabb rule of evidence, we should not forget that a jury heard undeniably admissible evidence tending to show guilt, quite apart from the somewhat equivocal confession, and then solemnly determined that she terminated Robert Rettig’s right to life and so forfeited her own right to liberty. We should remember that society has a stake in this business. The public has the right to expect the criminal laws to be strictly enforced. They should never be given any reason to suppose that at times the courts coddle convicted criminals by unduly emphasizing their rights over the wrongs they have done to the rights of others. I am afraid that the reversal of this conviction on a borderline application of the McNabb doctrine may seem to some to support such a supposition. I would affirm.