(dissenting).
After the Supreme Court’s decision in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608 (1943), this court considered Mitchell v. United States, 78 U.S.App.D.C. 171, 138 F.2d 426 (1943). The sitting division then thought there was no alternative but to apply the McNabb “exclusionary” rule, and Mitchell’s conviction was reversed. The Government realized how devastating would be the effect upon the administration of justice of any such automatic and sweeping ap*937plication of McNabb, and accordingly certiorari was sought and was granted.
The Supreme Court reversed, United States v. Mitchell, 322 U.S. 65 (1944), noting at page 68, 64 S.Ct. 896, 88 L.Ed. 1140, three other cases where applications of the McNabb doctrine had not been challenged by the Government. Mr. Justice Frankfurter in Mitchell undertook to explain the McNabb holding. He pointed out, as had McNabb, that “[t]he mere fact that a confession was made while in the custody of the police does not render it inadmissible.” 322 U.S. at 69, 64 S.Ct. at 897. He emphasized the basis of McNabb, saying:
“Inexcusable detention for the purpose of illegally extracting evidence from an accused, and the successful extraction of such inculpatory statements by continuous questioning for many hours under psychological pressure, were the decisive features in the McNabb case which led us to rule that a conviction on such evidence could not stand.” 322 U.S. at 67, 64 S.Ct. at 897. (Emphasis added.)
Again in Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), Mr. Justice Frankfurter explained McNabb in terms of Rule 5 and its requirement of “judicial caution,” and presentation of the accused before the Commissioner “without unnecessary delay.” The Court pointed out that Up-shaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100 (1948) had implied no relaxation of the McNabb doctrine. TJpshmo had made clear that the petitioner had been illegally detained for at least thirty hours “for the very purpose of securing these challenged confessions.” (Emphasis added.) 335 U.S. at 414, 69 S.Ct. at 172.
Against such background, we had no difficulty in regarding as properly ex-cludable Killough’s confession prior to his presentation before the United States Commissioner on October 25, 1960. Quite otherwise were the circumstances after his appearance before the Commissioner. Judge Youngdahl with meticulous care had prepared an opinion which correctly analyzed the problem. Killough v. United States, 193 F.Supp. 905 (D.D.C.1961). Four judges here joined in an opinion, which I prepared, citing pertinent cases which had expounded principles upon which we would have affirmed Killough’s conviction. Killough v. United States, 114 U.S.App.D.C. at 324, 315 F.2d at 241 (1962).1 There had been no duress. Killough knew his. rights. Judge Youngdahl had held admissible as voluntary the confession by Killough after the preliminary hearing. Judge Youngdahl specifically had found that Killough had been advised that he had the right to refrain from making any statement; that any statement he made could be utilized as evidence in a trial against him; that he was entitled to retain counsel; that he was entitled to a preliminary hearing at which either he or his attorney could cross examine; and that he was entitled to a continuance in order to retain counsel.
Such is the judicial caution which is contemplated by Fed.R.Crim.P. 5. This court had twice said that if an accused shall have received such warning he is thereafter free to talk or not, and if the accused, under such circumstances, voluntarily admits his crime his confession may be received against him. The Supreme Court refused to review our decisions in Goldsmith v. United States and Jackson v. United States.2 It is certainly so that the mere fact a confession has *938been made to police officers by one in custody is not a bar to its use as evidence. United States v. Carignan, 342 U.S. 36, 45, 72 S.Ct. 97, 96 L.Ed. 48 (1951); United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896 (1944) ; cf. Wong Sun v. United States, 371 U.S. 471, 491, 83 S.Ct. 407 (1963); Bailey v. United States, 117 U.S.App.D.C. 241, 328 F.2d 542 (1964).
This appellant on October 13,1960, had .strangled his wife because he believed she was interested in other men. He placed her body in the trunk of her own car as he considered ways and means of disposing of the corpse. He finally drove down past the home of his “girl friend,” Miss Anna Holmes, and concealed the body in a dump. He then returned to Miss Holmes.
Neighbors and relatives questioned him as to the disappearance of Goldie Killough. Thus prodded, the appellant finally reported her disappearance to the Missing Persons Bureau. Interrogated by police, he purported to supply leads of possible value. As the police cheeked out the information, they discovered he had lied. They made an appointment for him to report to headquarters to clear up discrepancies. Instead of keeping the appointment, he fled. From Pittsburgh he telephoned to his “girl friend,” Miss Holmes, who told him the police had been to her seeking to locate him. Thereafter, returning to the District at her suggestion, he went to the girl friend’s home where he told her of events concerning some of which she testified at the first trial. At that time, no living person except Killough and possibly Miss Holmes, knew a single fact concerning the un-witnessed crime, not even where the body was. She telephoned to the detectives who came and picked him up.
On October 24, 1960, he told the officers he was aware of his constitutional rights and would neither affirm nor deny that he had killed his wife. Presented before the United States Commissioner the following day, the appellant received judicial caution, as noted.
Thereafter on the 25th, Miss Holmes had been at the jail to see Killough and left to secure a lawyer for him. He declined at the jail the proffered services of an attorney whom he knew because he had been counsel to the dead woman. That day an officer came to see Killough about his personal property and to secure clearance that the body might be turned over to an undertaker. Kil-lough signed a form consenting to receive the officer, although obviously, he could have refused to do so. He signed the release for the undertaker. Impulsively, after ten days within which to think about the web of circumstances beginning with the death of his wife choked by his own hands, he told the officer what had happened and how he committed the crime. The judicial warning was still fresh in his mind but he wished to continue talking when the officer arose to leave.
On the 24th before the Commissioner’s hearing, he had guided the officers to where he had concealed the body of his victim. One of my colleagues would exclude evidence concerning the corpse on the ground that its discovery directly resulted from police wrongdoing. He has -thought of such evidence as the “fruit of the poisonous tree.”
When this court divided five to four, the case was returned for a new trial. The Government then called as a witness a jail classification officer to whom Killough — after his appearance before the Commissioner — had related some details of the crime. The witness had no connection with the police. The situation was not unlike that in Tyler v. United States, 90 U.S.App.D.C. 2, 5, 193 F.2d 24, 27 (1951), cert. denied, 343 U.S. 908, 72 S.Ct. 639, 96 L.Ed. 1326 (1952), where the opinion recited:
“Two days later, May 8th, Tyler was interviewed in the jail by one *939Gilkey in the course of Gilkey’s duties as supervisor of classification at the institution. Gilkey asked Tyler about the charge upon which he was committed. Whereupon, Tyler repeated in substance the written confession he had made the previous Saturday to Detective Furr at police headquarters. In so testifying Gil-key’s recollection was refreshed by a memorandum he had made during the interview.”
This court then said, in effect, whatever question there might have been as to the admissibility of the confession before Tyler had been brought before the Commissioner where he received “judicial caution,” the admissibility of Tyler’s statement to Gilkey was not questioned. “Indeed, that would be quite impossible as to those statements made by him at the Commissioner’s and the jail.” 90 U.S.App.D.C. at 9, 193 F.2d at 31.
At the second trial following a hearing on the admissibility of that testimony by the jail classification officer, Judge Cur-ran prepared an opinion which appears as United States v. Killough, 218 F.Supp. 339 (D.D.C.1963). His findings and his conclusions led to his ruling that Kil-lough’s further confession to the classification intern might be received in evidence. He agreed thus with Judge Youngdahl who had found at the first trial that Killough’s later statements were independent and voluntary. Of course it had become obvious that Kil-lough wanted to talk about the episode. He carried around and exhibited — perhaps proudly — clippings from the newspapers which had detailed his crime. He later narrated the circumstances to a nurse.
Meanwhile, following our opinion of October 4, 1962, our judgment of remand reached the District Court on November 26, 1962. On December 11, 1962, Kil-lough was released on bail. Two days later he married Miss Holmes. When called as a witness at the second trial, she asserted her privilege as his wife and her lips were sealed. Talk about fruits of wrongdoing! This case has reached the nadir. As in Mitchell v. United States, 78 U.S.App.D.C. 171, 138 F.2d 426 (1943), once again, this court has painted itself into a corner.3
Since I would affirm Killough’s. conviction, it goes without saying that I agree with so much of Part III of Judge Washington’s opinion as holds admissible the testimony of the nurse and the evidence relating to the victim’s body.
. The various opinions in that case recited the facts concerning Killough’s appearance before the Commissioner where he was advised of his rights. Detailed, in addition, were the circumstances under which Killough the following day repeated his confession. Four judges held that the reaffirming confession — despite the Commissioner’s intervening hearing — was a result of Killough’s earlier confession uttered prior to his appearance before the Commissioner. A fifth judge voted to reverse on grounds separately stated.
. Goldsmith v. United States, 107 U.S.App.D.C. 305, 277 F.2d 335, cert. denied sub *938nom. Carter v. United States, 364 U.S. 863, 81 S.Ct. 106, 5 L.Ed.2d 86 (1960); Jackson v. United States, 109 U.S.App.D.C. 233, 285 F.2d 675 (1960), cert. denied, 366 U.S. 941, 81 S.Ct. 1666, 6 L.Ed.2d 852 (1961).
. Sec generally, Coerced Confessions, 31 U.Chi.L.Rev. 313, 326-27 (1964).