(concurring in result) .
Despite my personal conviction that simple justice in this case would be served by affirmance of the judgment, I feel obliged, for reasons noted below, to agree with the final holding announced by Judge Healy in which the judgment is reversed.
The prevailing opinion outlines the general fact situation revealed by the record *959and most of these matters require no further comment. Unless I wholly misunderstand the import and teachings of the Upshaw decision,1 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100, application of the rule it an- ' nounces requires our disposition of this case on this appeal. Before proceeding to a discussion o‘ the Upshaw case certain vital aspects of the instant case deserve emphasis.
As our opinion points out appellant was questioned about his rape of Christine Norton after being picked up on that charge. While being questioned regarding that offense (upon which he was later convicted) appellant was incidentally questioned about the Showalter murder then under investigation but he gave the officers no information about the Showalter matter. It is obvious that up to this time he had said nothing which was, or could be, used against him. A short time later, and in the office of the United States Marshal, occurred the questioning regarding Laura Showalter with which we are here concerned. As respects this questioning, Judge Healy makes plain that at all times when it was under way the officers concerned treated appellant in a restrained and kindly way. In this posture of the facts I think the confession he made to the Marshal escapes the taint of a constitutional infirmity.
I think that sound reasons underlie the foregoing conclusion. While I am in agreement with our final disposition of the case, I cannot concede that the record justifies the conclusion (or even a strong inference) that the confession was made because appellant was badgered, overreached, coerced or intimidated to a point where a confession was literally wrung from him by unfair methods. I consider his confession to-be the product of free will — as much cold and deliberate free will as the impulse that sent him on the pathway of vicious criminality revealed by this sordid record. In my view this man knew at each stage of all the proceedings here involved, exactly what he was doing, and why.
The record shows that at or about the time he was previously questioned concerning the Norton rape he was then fully advised as to all of his legal rights in connection with an inquiry concerning his connection with a crime. It would literally rape Reason and stand Logic on her head to assume that with this explicit advice as to all of his rights in such a matter still ringing in his ears, appellant failed to understand, fully and completely, that these same rights were his freely to invoke when almost immediately afterward he was questioned by the United States Marshal in a similar inquiry concerning a much more serious offense — his possible connection with the murder of Laura Showalter. I think that the Marshal’s statement to him served to again emphasize his right to remain silent if he chose so to do.
We would be utterly naive if we overlooked the cold, hard fact that we are not here dealing with a simple childlike mentality. We deal with a cold-blooded rapist who was clever and cunning enough to hide his criminal trail with great skill. He did not require the services of an attorney to know that he did not have to “talk”' — the record shows that he was advised at the Norton inquiry and fully understood that he could remain silent from the moment of his apprehension and detention on a criminal charge to the very end of the legal trail. His age and the extent of his literacy justifies the most careful appraisal of his understanding of the issues confronting him in the later Showalter matter. It will not do' to rake and scrape through the whole gamut of possibilities to find some plausible reason to believe that he was a dull clod rather than a pretty smart criminal. That he did not know at all pertinent times that he could remain silent as to' Laura Showalter is a conclusion wholly unjustified by the record.
There is in this case another impressive fact which lends imposing strength to the-view that the confession made to the Marshal was purely and wholly voluntary. Appellant was obviously deeply moved at that time by some form of remorse which induced him to demand the advice of a priest. Perhaps he felt an impulse to change his mind about silence and wanted to discuss this matter with a churchman before reaching a final decision regarding a confession. How can any court or any judge weigh such a consideration with the *960slightest hope of reaching a just or logical conclusion? It is certain that we should not substitute judicial guesses for what this spiritual adviser may have urged appellant to do. If appellant was urged by the priest to make a clean breast of the whole affair (if he was actually guilty) this contemplation goes to the very heart of the problem of the voluntary or involuntary nature of the confession made after the conferences. That this aspect of the matter was being weighed by appellant is given further emphasis by the fact that the priest came back a second time at the request of appellant.
If, as a final result of the two conferences with the priest there arose in appellant’s mind a pervading and overwhelming sense of guilt over having brutally murdered an aged and inoffensive woman, we are justified in the assumption that the resulting confession was probably the product of this sense of guilt. No- one will contend that a detainee was not entitled to have (and to act upon) the advice of a man of the church — if this is a right, ho-w is any court to determine with any hope of accuracy that the prisoner did not elect to act on the advice that was given?1 It is of the utmost significance that the confession' came shortly after the visits of the priest, a circumstance not to be casually brushed aside. The timing of the confession is a factor which convinces me that the two conferences were infinitely more persuasive in inducing appellant to- “tell the truth” than merely gazing at religious pictures and hearing the Marshal tell him that he ought to tell the truth. I am unwilling to casually set aside all consideration of the possible and probable effect of the priestly visits as a matter of no consequence, and furthermore, I am unwilling to agree that it violated the rights of appellant for the Marshal to urge him to “tell the truth.”
It seems too clear for argument that under any conceivable theory of American law appellant had an absolute right to make a volitntary confession at any time. Surely it will not be seriously argued that courts may, by some judicial ipse dixit, dény to any person detained by officials for questioning, this absolute right voluntarily to confess to the commission of a crime regardless of whether the confession comes before or after arraignment. (In this case appellant was not arraigned.) Nor can it be said that denial of a right voluntarily to confess >at any time may be spelled out of any proper, or even strained, construction of Rule 5(a) (b) of the Rules of Crim. Proc. 18 U.S.C.A.
The Upshaw Doctrine
But -regardless of what has been said before it seems clear that the issue we face may not be disposed of on the basis of the voluntary or involuntary character of the confession. Judge Healy’s opinion permits the assumption that even though the confession was absolutely voluntary, nonetheless, under (required) strict application of the rule announced in Upshaw, the failure of the officers to have Carignan arraigned within the period indicated in Rule 5(a) (lb) before quizzing him in any manner about his possible connection with the murder of Laura Showalter, automatically requires reversal of the judgment of conviction. Because under the facts of this case I fear that this reversal will bring about a grave miscarriage of justice, I have indicated my view about the nature of the confession.
As I read the Upshaw decision it seems clear that (as applied to the facts of this case) admissibility of appellant’s confession turns upon its timing and not upon either its truth or voluntary character, or, upon both truth and voluntary character. In such a case it is apparent that even if the confession was as true as Holy Writ and absolutely free from the taint of any form of coercion, it must be rejected as evidence because it was secured (or accepted) prior to arraignment. This being my understanding of the rule of evidence laid down in Upshaw I feel obliged to agree with Judge Healy in -reversing the judgment.
Before commenting further on the Upshaw doctrine I emphasize the fact that in this case we face a situation where, in try*961ing to locate and apprehend a rape fiend and promptly end his murderous career which was terrorizing an entire community and brutally depriving innocent and law-abiding people of their legal and constitutional rights by his criminal assaults, the local officers involved were discharging the highest legal and moral duty to protect decent citizens who had hired them for that very purpose. These citizens had every legal right to. demand complete fidelity to that duty on the part of their public servants, a fact which is brought home to police officers with unstinted vigor when the lives and safety of citizens are at stake. Considering the great urgency of the situation where prompt action was vitally necessary and delay in capturing appellant and bringing about the end of his criminal activities might surely mean other murders, I think that the officers here concerned discharged their duty to the public with admirable restraint and with a full sense of their obligations to society. T refuse to chalk up to their discredit their very sensible recognition of the fact that the 'law abiding also have rights which the law must protect if it hopes to retain the respect and confidence of decent people — the kind of people upon whose moral and civic standards the nation must rely if it is to endure.
In laying the teachings of the Upshaw decision alongside the facts before us, and in appraising its ultimate holding, I feel justified in accepting the conclusions as to its exact meaning which were expressed by Mr. Justice Reed who spoke for four dissenting members of the Court. I quote pertinent statements in the dissenting opinion : “The Court bases its decision of today on the theory 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 phychological * * * ” ’ ” and “but the rule now announced forces exclusion of all confessions given during [such] illegal restraint. It will shift the inquiry to the legality of the arrest and restraint, rather than to whether the confession was voluntary. Such exclusion becomes automatic on proof of detention in violation of the commitment statute, followed by a confession to police officials before commitment.” and “It is because illegal detention was not thought to be per se coercive that it was necessary to create the McNabb rule of exclusion. * * * The Court now says that illegal detention alone is sufficient to bar from evidence a confession to the police during that unlawful detention. * * * Apparently the Court intends to make the rule of commitment 'without unnecessary delay’ an iron rule without flexibility to meet the emergencies of conspiracies, search for confederates, or examining into the ramifications of criminality. The Court does this by failing to distinguish between necessary and unnecessary delay in commitment. * * * All, I think, without any need for such action since every coerced confession has been [constitutionally] inadmissible for generations.” [335 U.S. 410, 69 S.Ct. 176.] (Emphasis supplied.)
Measured by this yardstick of what appears to be a most careful and painstaking appraisal 1 see no other course open to us than to follow the rule and reverse. However, I emphasize that my concurrence rests solely upon the fact that appellant was. not arraigned prior to being interrogated by the Marshal and prior to the making of the confession. The evidence in this case convinces me that the confession was freely made and was not the product of any form of promises or inducement that would or should vitiate it. I am in complete agreement with Judge Pope’s comment that if the drastic departure from “previous notions” (as to admissibility of confessions) is to become binding on federal courts, this vital change should be accomplished by Congress and not the courts.
I express a final thought which comes as the outgrowth of years of observation and sufficient experience to1 justify my misgivings. There is implicit in this case the appalling possibility that a brutal murderer who had reached the maturity of manhood and who fully understood the nature of his horrible crime, may possibly escape punishment because of the suppression of this confession. Even though there is other evidence in the case which tends to connect *962appellant with the murder and corroborates the truth of his confession, a cautious and careful prosecutor might well conclude that this additional and corroborative evidence, standing alone, would not, in the event of a new trial, be sufficient to establish guilt of murder beyond all reasonable doubt. In such an event the murder charge might be dropped — a far from unusual circumstance in the course of criminal prosecutions. It is because of the possibility of such a culmination that cases like this induce the sense of frustration and futility which now assails SO' many law abiding people as they contemplate the failure of the law to bring obvious criminals to justice. Oceans of argument and rules of evidence will not explain away such failures at a time when organized and unorganized lawlessness and gangsterism of the most vicious sort constitute a terrifying threat to our entire social order — and what is even more ominous right now, to the peace of the whole world.
. I presume that courts will not challenge the legal right of a churchman to offer advice which might induce a confession.
. The officer gave Carignan a pad and pencil and permitted Mm to write what he had to say, in Ms ceil. The officer was not present when the writing was done. After it was composed the prisoner was told that if-he wished he could “tear it up and flush it down the toilet.” There was no continued or continuous questioning. When Carignan asked for a priest, on two occasions, his wish was promptly granted.