(dissenting).
Upon the ground stated in the opinion of Judge FAHY and upon the further ground stated below, I dissent from the judgment of the court.
Statements the police obtained by questioning appellant during the two days intervening between his arrest and his arraignment were admitted in evidence against him.1 Because appellant’s injuries required his confinement in a hospital during this period, the majority holds there was no “illegal detention” within the meaning of Rule 5(a), F.R. Crim.P., and hence the McNabb rule does not bar the statements. I cannot agree. I would hold the admission of the statements to be error warranting a new trial.2
*716Rule 5, F.R.Crim.P., requires arraignment “without unnecessary delay.” “ * * * What constitutes ‘unnecessary delay,’ i. e., reasonable time within which the prisoner should be brought before a committing magistrate, must be determined in the light of all the facts and circumstances of the case.”3 Reasonableness of a delay of arraignment is, therefore, a functional consideration which embraces not only the circumstances occasioning the delay but also the events transpiring in the course of it.
The most obvious of the “evil implications of secret interrogation”4 is that the accused may be unaware of such matters as his right to have counsel and to refuse to answer questions, and the risk that any statement he makes may be used against him. Hence Rule 5(a) directs that an arrested person be taken “without unecessary delay before the nearest available” committing officer, who “shall inform” the accused, as required by Rule 5(b), of the aforementioned matters inter alia.
The rule was promulgated because failure to arraign promptly “was thought to give opportunity for improper pressure by police before the accused had the benefit of the statement by the commissioner.” 5 Opportunity for such pres-ure is present whenever the arrested person “is under the exclusive control *717of the police, subject to their mercy, and beyond the reach of counsel or of friends.” 6
That the delay in arraigning appellant was unavoidable did not diminish the opportunity for pressure. The secrecy of appellant’s interrogation — and hence its evil implications — could have been no greater if the delay had been deliberately planned by the police. Hence, if the evil implications of secret interrogation are to be avoided, in a case where delay of arraignment cannot be avoided, it is at least indispensable that the police give the accused substantially that advisory information which the committing officer would give him at the arraignment.7 The practice of thus advising arrested persons has been prescribed by rule of court in England at least since 1912 8 and was used by “the respectable officer” in this country as long as half a century ago.9 That this is consistent with proper and efficient police work is clear from the statement of J. Edgar Hoover, Director of the Federal Bureau of Investigation, that:
“ * * * Special Agents are taught that any suspect or arrested person, at the outset of an interview, must be advised that he is not required to make a statement and that any statement given can be used against him in court. Moreover, the individual must be informed that, if he desires, he may obtain the services of an attorney of his own choice.”10
Since there is no showing here of any circumstances to mitigate the evils of appellant’s secret interrogation, I would apply the salutary requirements of Rule 5 and hold that McNabb bars the statements made pursuant to police interrogations during the period of delay. “A statute [or a rule] carrying such purposes is expressive of a general legislative policy to which courts should not be heedless when appropriate situations call for its application.” 11
It is said that the admission in evidence of the statements obtained through secret interrogation of the appellant resulted in no prejudice to him. Such a conclusion can be reached only when “the conviction is sure that the error did not influence the jury, or had but very slight effect * * Kotteakos v. United States, 1946, 328 U.S. 750, 764, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557. Having no such sure conviction,12 especially in the light of the fact that this *718is a capital case, I am unable to agree that the error was not prejudicial. Cf. Anderson v. United States, 1943, 318 U.S. 350, 356-357, 63 S.Ct. 599, 87 L.Ed. 829.
I am authorized to say that EDGERTON, Chief Judge, joins in this dissent.
. Whether, prior to his transfer to the locked ward of the District of Columbia General Hospital, appellant had been placed under arrest or just happened to be fairly constantly attended by policemen and fire inspectors is not clear from the record. But from Tuesday afternoon to Thursday, he was under arrest and the statements here in question are those obtained from him during that period in interrogations by two policemen and two fire inspectors.
. That the appellant, in making the admissions in question neither intended nor purported to confess, does not prevent the application of the McNabb rule. The majority, indeed, although it notes that *716“there was no confession,” finds McNabb inapplicable not on that account, but only because there was no “illegal detention.” To the extent that Ercoli v. United States, 1942, 76 U.S.App.D.C. 360, 131 F.2d 354, dealing with the requirement of corroboration of extrajudicial admissions, is here relevant, it must be held to have been overruled in Opper v. United States, 1954, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101. The Supreme Court pointed out that it is inconsequential whether the statements were made as a confession or for the purpose of exculpation, so long as they are “statements of the accused out of court that show essential elements of the crime * * Id., 348 U.S. at page 91, 75 S.Ct. at page 163. Regarding the contention of the Government (and our view in Ercoli) that admissions intended as exculpation should he excepted from the requirement of corroboration, the Court said: “This accords with Professor Wigmore’s view [citing Evidence (3d ed.) § 821; relied on by us in Ercoli, 76 U.S.App.D.C. at page 362, 131 F.2d at page 356, notes 6, 7 and 8]. The statements here are exculpatory. * * * There is no opinion of this Court declaring or declining such an exception. We conclude that exculpatory statements, however, may not differ from other admissions of incriminating facts. Given when the accused is under suspicion, they become questionable just as testimony by witnesses to other extrajudicial statements of the accused.” Id., 348 U.S. at pages 91-92, 75 S.Ct. at page 164.
. Notes of Advisory Committee, Rule 5(a). The Supreme Court, speaking of the statutory predecessors of Rule 5, said in McNabb v. United States, 1943, 318 U.S. 332, 343-344, 63 S.Ct. 608, 614, 87 L.Ed. 819:
“The purpose of this impressively pervasive requirement of criminal procedure is plain. A democratic society, in which respect for the dignity of all men is central, naturally guards against the misuse of the law enforcement process. Zeal in tracking down crime is not in itself an assurance of soberness of judgment. Disinterestedness in law enforcement does not alone prevent disregard of cherished liberties. Experience has therefore counseled that safeguards must be provided against the dangers of the overzealous as well as the despotic. The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication. Legislation such as this, requiring that the police must with reasonable promptness show legal cause for detaining arrested persons, constitutes an important safeguard — not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. For this procedural requirement checks resort to those reprehensible practices known as the ‘third degree’ which, though universally rejected as indefensible, still find their way into use.
It aims to avoid all the evil implicay tions of secret interrogation of persons accused of crime.” (Emphasis supplied.)
. Supra note 2.
. United States v. Carignan, 1951, 342 U.S. 36, 45, 72 S.Ct. 97, 102, 96 L.Ed. 48.
. Mr. Justice Douglas, concurring in United States v. Carignan, 342 U.S. at page 46, 72 S.Ct. at page 102. In Watson v. United States, 98 U.S.App.D.C. 221, 234 F.2d 42, the court had occasion to comment on the police practice of keeping a prisoner secreted from lawyers. See note 11 of my dissenting opinion in Mallory v. United States, 98 U.S.App.D.C. 406, 236 F.2d 701.
. Cf. Pixley v. United States, 10 Cir., 220 F.2d 912, 913, holding a two-day delay of arraignment not improper where the accused was immediately warned that “he did not have to make a statement; that any statement he might make could be used against him; and that he was entitled to an attorney * * also, Haines v. United States, 9 Cir., 1951, 188 F.2d 546, certiorari denied 1951, 342 U. S. 888, 72 S.Ct. 172, 96 L.Ed. 666, approving the admission in evidence of statements obtained through two interrogations, each of which was preceded by the equivalent of a Rule 5 advisory statement.
. McNabb v. United States, 318 U.S. at page 345, note 9, 63 S.Ct 608, 87 L.Ed. 819, and authorities there cited; see also 3 Wigmore, Evidence (3d ed.) 294-298.
. Major Sylvester, Washington Chief of Police, President of International Association of Chiefs of Police, Proceedings of 17th Annual Meeting (1910) 54, quoted in 3 Wigmore, Evidence (3d ed.) 316, 317.
. Hoover, Civil Liberties and Law Enforcement, 37 Iowa L.R. 175, 182 (1952).
. McNabb v. United States, 318 U.S. at page 344, 63 S.Ct. at page 615, 87 L.Ed. 819.
. Sergeant Couture testified that appellant told him on Thursday that he had written and mailed the letter to Mrs. Anthony “just prior to his detecting the odor of smoke.” That time was fixed by all the evidence, including appellant’s own testimony, at about 7:00 a. m. That statement vitally contradicts the story *718appellant told at the trial: that he had found Miss Brown dead at about 12:30 a. m.; that, in a fit of despondency he had immediately written the letter and mailed . it before 1:00 a. m.; that then, deciding to wait until morning before calling anyone to take care of the body, he went back to bed; that when he arose at about 7:00 a. m., even before he was fully dressed, he detected smoke and going to investigate, was attacked and knocked senseless. If the jury believed that appellant had gone out to mail a letter at 7:00 a. m., as Sergeant Couture said appellant had admitted, then appellant’s whole story must, or could, have become incredible. .