(dissenting).
I agree with the majority that under the ruling of the McNabb case, as interpreted by the Mitchell case, the statements obtained by the officer were inadmissible because of the delay in taking appellant to court; but I do not agree that the reception of such inadmissible testimony was harmless error.
Appellant admitted his past criminal record and admitted being arrested in the instant case while waiting or loitering in a public place. But two other elements were necessary to complete the. offense of vagrancy, namely, failure to give a good account of himself when found so loitering and lack of lawful employment and lawful means of support realized from a lawful occupation or source. The burden of proof of lawful employment and means of support was on him. He took the witness stand to give a good account of why he was waiting around the station and to prove his lawful employment and means of support.
But before he took the stand, the officer had been permitted to testify that appellant said he “came to Washington to pick pockets.” In my opinion, nothing could have been more prejudicial. In the face of this incriminating admission could his explanation of why he was at the bus station carry any weight with the trial judge? There was no testimony as to lawful employment or means of support except that of appellant. Can it be supposed that his testimony on this point was received by the trial judge free of the prejudice and suspicion created by the officer’s statement ?
Certainly, if the trial judge believed that appellant told the officer he came here to pick pockets, no weight would be-given to appellant’s testimony in his own behalf. Testimony of the officer not only destroyed any credibility to be given appellant’s testimony but had the effect of impliedly contradicting his claim to being at the station for a good reason and to possessing lawful employment.
I see no escape from the conclusion that there was received in evidence inadmissible testimony of so prejudicial a nature as to prevent appellant receiving a fair and impartial trial. This not only justifies but requires a reversal.
It is pointed out by the majority that the inadmissible testimony was received without objection. However, the trial occurred prior to the decision in the Mitchell case, and this circumstance, in my opinion, warrants departure from the strict rule of confining appellate review to questions raised at the trial.