(dissenting).
My opinion that this conviction should be reversed has already been expressed in connection with the original hearing of this appeal before a division of the court. That opinion in which Judge Washington joined and from which Judge Miller dissented, was filed February 13, 1958, and appears as an appendix hereto. I wish now only to record my dissent from the judgment of the majority on rehearing in banc affirming the conviction and to comment on certain of the majority’s conclusions which seem to me clearly erroneous.
Chief Judge EDGERTON and Circuit Judges FAHY and WASHINGTON authorize me to say that they join in the fallowing comments.
I.
The majority concludes that a statement taken by the police from an arrested person during an unnecessary delay in arraignment is not inadmissible under Mallory v. United States, 1957, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479, if the statement is “exculpatory” rather than “incriminating.” It argues by analogy to the rules concerning the need for corroboration of extra-judicial admissions and cites Ercoli v. United States, 1942, 76 U.S.App.D.C. 360, 362, 131 F.2d 354, 356, in which we said: “The rules governing the reception in evidence of such admissions [exculpatory statements] are much less onerous than those concerning confessions.” But, to the extent that there is a valid analogy, Ercoli has been overruled as to the cited point in Opper v. United States, 1954, *384348 U.S. 84, 91-92, 75 S.Ct. 158, 164, 99 L.Ed. 101, in which the Supreme Court said: “We conclude that exculpatory-statements,1 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.” See my dissent in Green v. United States, 1956, 98 U.S.App.D.C. 413, 420-421, note 2, 236 F.2d 708, 715-716 note 2, reversed on other grounds 1957, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199.
Moreover, sanity, once placed in issue, as it was here, becomes an “element necessary to constitute the crime” and the defendant cannot be declared guilty of the crime unless the Government proves his sanity beyond a reasonable doubt, just as it must with respect to every other element of the crime. Davis v. United States, 1895, 160 U.S. 469, 487-488, 16 S.Ct. 353, 40 L.Ed. 499. Evidence tending to prove sanity is, therefore, incriminating evidence in the circumstances here.
II.
I agree with the statement in the majority opinion that it would not be “prejudicial error” to instruct the jury, as to the consequences of a verdict of not guilty by reason of insanity, that the defendant will remain “confined until it is found by the court that he has recovered his sanity and no longer has an abnormal mental condition which causes him to be potentially dangerous.” Indeed, such an instruction would not be error at all.
But that instruction was not given here. On the contrary, the judge charged the jury:
In the event your verdict is not guilty by reason of insanity, the defendant will be committed to St. Elizabeths Hospital, there to remain until such time as it is established that he is no longer insane.
Altogether lacking in the instruction given was any hint that a determination of public safety would play any part in the defendant’s release.
Whether or not, in cases tried before our decision in Lyles v. United States, 1957, 103 U.S.App.D.C. 22, 254 F.2d 725, certiorari denied 1958, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067, it was mandatory to give an instruction as to the consequences of an insanity verdict, I think the giving of an incorrect instruction on that question was as erroneous and as prejudicial before Lyles as after. See Catlin v. United States, 1957, 102 U.S.App.D.C. 127, 251 F.2d 368, and my dissent in Bradley v. United States, 1957, 102 U.S.App.D.C. 17, 21, 249 F.2d 922, 926.
The majority concludes, however, that leaving out the safety element of the test was the logical thing to do, because, as a matter of law, mere danger will not justify confinement if the defendant has “recovered his sanity.” As to a defendant who has successfully pleaded insanity, this view was, by necessary implication, rejected in Lyles. The present majority avoids expressly overruling Lyles, but points out that Lyles, “being prospective only, does not apply.”
That an instruction regarding release, if given, must contain an explanation of the public safety element, has been understood since Taylor v. United States, 1955, 95 U.S.App.D.C. 373, 379, 222 F.2d 398, 404. Lyles did not, by making the instruction regarding release mandatory for the future, eliminate the public safety component. It expressly included it. So does the statute. See my dissent in Tatum v. United States, 1957, 101 U.S.App.D.C. 373, 377, 249 F.2d 129, 133, certiorari denied 1958, 356 U.S. 943, 78 S.Ct. 788, 2 L.Ed.2d 818, and Bradley v. United States, supra. The effect of the present majority decision is that, in *385cases tried before Lyles, the public safety component was unnecessary.
Since, by this time, there cannot be very many pre-Lyles cases left to be heard on appeal, it probably matters very little to the law that the majority has carved out a temporal no-man’s-land, somewhere between Taylor and Lyles. It matters considerably, however, to this appellant. I therefore dissent.
Appendix
BAZELON, Circuit Judge.Appellant was tried for first degree murder. His principal defense was insanity.1 On February 8, 1957, the jury found him guilty of second degree murder and in due course he was sentenced to imprisonment for eight to twenty-five years. In this appeal from the judgment of conviction he assigns two principal errors: (1) that the trial court failed to direct a judgment of acquittal by reason of insanity; and (2) that the court admitted into evidence a written statement which the police obtained from appellant while he was unlawfully detained.
From the conflicting evidence on the issue of sanity the jury could have concluded beyond a reasonable doubt that appellant was sane. The submission of that issue to the jury was therefore clearly correct.
Appellant’s second allegation of error, however, is of more substance. Appellant was arrested at about 1:00 a.m., on June 11, 1956. He was questioned for some time at the scene of the arrest and was then removed to the precinct station. About an hour later he was questioned again at the precinct station for about 45 minutes. Then he was removed to the central cell-block at police headquarters to await additional questioning by the arresting officer at the latter’s “very earliest opportunity.” It was about 7:30 a.m. before that opportunity arose. Appellant was then brought to the office of the Homicide Squad and, at 8:10 a.m., there began the typing of a written statement. The statement, a transcript of questions and answers, was completed at 10:20 a.m., and was then signed by appellant. Not until later that day, the exact time not being shown in the record, did the police bring appellant before a committing magistrate as Rule 5, Fed.R.Crim.P., 18 U.S.C.A., requires them to do after arrest “without unnecessary delay.” Mallory v. United States, 1957, 354 U.S. 449, 77 S.Ct. 1356, 1360, 1 L.Ed.2d 1479. There is no reading of Mallory which makes appellant’s written statement admissible in evidence. Cf. Watson v. United States, 1957, 101 U.S.App.D.C. 350, 249 F.2d 106.
But the Government argues that the judgment should nevertheless be affirmed because of lack of proper objection to the offer of the statement below and because the error of receiving the statement was not prejudicial.
When the statement was offered in evidence defense counsel objected. Whethei the ground of the objection was the McNabb 2 Mallory rule or that the statement was obtained through coercion is left somewhat obscure by the record. The Government says the objection was on the ground of coercion and that appellant should therefore be foreclosed from raising for the first time on appeal the McNabb-Mallory objection. See Lawson v. United States, 1957, 101 U.S. App.D.C. 332, 248 F.2d 654. Before the Supreme Court’s Mallory decision, however, the view was not uncommon that the McNabb rule was essentially a variant of the coerced confession rule. See, e.g., Rettig v. United States, 1956, 99 U.S.App.D.C. 295, 300-301, 302, 239 F.2d 916, 921-922, 923. That was the view taken by the Government itself before Mallory. Indeed, even in its brief in this *386case, written after Mallory, the Government still argues that it was incumbent upon appellant to show that the delay in arraignment was “the cause” of his statement. Realism and justice dictate the conclusion that the McNabb-Mallory point is properly preserved in a pre-Mallory trial by an objection based on the theory of coercion.
In contending that receiving the statement in evidence was not prejudicial error, the Government argues (a) that the statement was exculpatory; (b) that it was consistent with appellant’s testimony at the trial; and (c) that, apart from the statement, there was overwhelming proof that appellant committed the homicide. These arguments, while true, do not persuade us that the error of receiving the statement was not prejudicial. The statement was not offered on the issue of whether appellant committed the homicide, but rather to show “the state of mind of the defendant as to his alertness and as to his memory at the time that he made the statement.” In view of the conflicting testimony as to appellant’s sanity at the time of the homicide, the statement he made some nine hours after the event might have influenced the jury to determine that he was then sane. Having offered it for that purpose, the Government can hardly claim now that it was not effective. Bram v. United States, 1897, 168 U.S. 532, 541, 18 S.Ct. 183, 42 L.Ed. 568.
The conviction must be reversed and the case remanded for a new trial for second degree murder or some lesser offense, see Green v. United States, 1957, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, at which the improperly taken statement of appellant shall not be received in evidence. This disposition of the case makes it unnecessary to consider appellant’s other claims of error.
Reversed and remanded.
WILBUR K. MILLER, Circuit Judge, dissents.. The Court defined such statements as “those that explain actions rather than admit guilt.”
. Though appellant denied the homicide, there was no serious question that he had committed it, because the act was done in the presence of numerous eyewitnesses.
. McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819.