(dissenting).
I agree that the oral confession was admissible but I think the written one was not.
After the police got the defendant’s oral confession that he had fired a gun, they held him over two hours without taking him before a magistrate. There was no excuse for this delay; in fact, the record makes it pretty plain that about an hour of the delay was due to the desire of the police to get a written confession. It follows that the written confession should have been excluded. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. Since the oral confession was rightly admitted, it is possible that the erroneous admission of the written one was not prejudicial. But it may have been prejudicial, and the defendant is entitled to the benefit of the doubt. At the trial, he repudiated parts of the written confession, and the government attacked his credibility by pointing out conflicts between it and his *34testimony. What, if anything, he would have said at the trial if the written confession had not been introduced, we cannot know.
I do not suggest the police should be compelled to arraign all suspects before questioning them. If a suspect is willing to talk and is not under arrest the police may question him at length. Whether they may question him not only at the moment of arrest, but also during a short journey to a committing magistrate, we need not now decide.
A suspect is more likely to make damaging statements while the police are holding him than before he is arrested, but this does not authorize them to arrest him. Arrests without “probable cause” are illegal. It is also illegal for the police to hold a man in their own custody in order to conduct a “definitive inquiry” instead of arraigning him promptly before a committing magistrate.
Only last June, in reversing a conviction this court had affirmed, the Supreme Court said: “The police may not arrest upon mere suspicion but only on ‘probable cause.’ The next step in the proceeding is to arraign the arrested person before a judicial officer as quickly as possible so that he may be advised of his rights and so that the issue of probable cause may be promptly determined. * * * It is not the function of the police to arrest, as it were, at large and to use an interrogating process at police headquarters in order to determine whom they should charge before a committing magistrate * * Mallory v. United States, supra, 354 U.S. at pages 454, 456, 77 S.Ct. at pages 1359, 1360. The decision and opinion were unanimous. The Court pointed out that in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, it had “held that police detention of defendants beyond the time when a committing magistrate was readily accessible constituted ‘willful disobedience of law.’ In order adequately to enforce the congressional requirement of prompt arraignment, it was deemed necessary to render inadmissible incriminating statements elicited from defendants during a period of unlawful detention.” Mallory v. United States, supra, 354 U.S. at page 453, 77 S.Ct. at page 1358. The McNabb case was decided in 1943. Again in 1948, in reversing a conviction this court had affirmed, the Supreme Court expressly adhered to the “rule that a confession is inadmissible if made during illegal detention due to failure promptly to carry a prisoner before a committing magistrate * * Upshaw v. United States, 335 U.S. 410, 413, 69 S.Ct. 170, 172, 93 L.Ed. 100.