(dissenting):
Judge Edgerton’s opinion is divided into parts (I to VI), and this dissent will follow that same format.
However, before discussing Point I, I advert to the facts. I am deeply disturbed because it seems to me that the brief résumé contained in the majority opinion does not describe the case shown by the record.
Facts
About a year and a half before the events in the District of Columbia with which we are concerned, a North Carolina warrant issued (on March 6, 1961) in the Recorder’s Court of Zebulon, Wake County, North Carolina, for the arrest of one Willie Lee Short upon a charge of assault with a deadly weapon, alleged to have occurred in that County. Deputy Sheriff Blakeley knew the Short family and attempted to execute the warrant but failed to find the accused except upon one occasion when Short fled in a car.
On August 10, 1962, almost a year and a half after the foregoing, a warrant was issued by the Municipal Court for the District of Columbia1 for the arrest of Willie Lee Short upon a charge of attempted robbery allegedly committed in Washington on August 3, 1962. Detective Sergeant O’Bryant, of the Metropolitan Police, who obtained the warrant, teletyped police in North Carolina and Virginia giving the names and addresses of Short’s relatives in North Carolina.
On August 13, 1962 (the same month) another warrant, alleging the robbery on July 28th of a liquor store in the District of Columbia, was issued by the Municipal Court here. It called for the arrest of one David Jones, said to be from Zebulon, North Carolina. Two days later Jones gave himself up and was subsequently bound over to the grand jury.
Sometime early the next month, i. e., in September, Deputy Sheriff Blakeley, in Zebulon, North Carolina, received information that Short was at a given address in Raleigh. A couple of days later (Thursday, September 13, 1962) Raleigh police officers went to the given address with a copy of the Wake County warrant; Short went out the rear door but was apprehended, and the officers radioed Sheriff Blakeley in Zebulon. Blakeley told them that Short was also wanted in Washington, D. C. Some difficulty in locating the teletype ensued, but the following morning O’Bryant confirmed to a Deputy Sheriff Kelly that Short was wanted here and inquired whether he would “waive extradition”. Kelly talked to Short, read the extradition document twice to him, told him he did not have to sign if he did not want to, and explained the procedure. Short said he would “come back here” and signed the waiver of extradition.
O’Bryant flew to Raleigh the next morning, Saturday, September 15th, arriving at about ten o’clock. It took a short while for him to get to the sheriff’s office and for Short to be brought from his cell. O’Bryant noted on the warrant: “Arrested 9-15-62 10:30 AM Sheriff’s Office, Raleigh, N. C.”
O’Bryant told Short he need not give a statement and that if he gave one it could be used against him. Sheriff Scarborough was present and heard O’Bryant *875so advise Short. O’Bryant then inquired about several robberies, four in all, and Short denied knowledge of any of them. The officer then described to Short the evidence the police had against him. They had Short’s fingerprints in the grocery store. David Jones had turned himself in. The police had Jones’s shoes, later identified by a witness as the shoes worn by a participant in the robbery. They had the shotgun obtained from an alleged accomplice’s apartment on a search warrant. O’Bryant testified, “I informed him of * * * some of the evidence that we had and at that time he said, ‘Well, I may as well tell you the truth about it,’ and he told me.” O’Bryant further said, “Yes, I would say within an interval of two minutes or three minutes.” The trial court found: “Officer O’Bryant testified, and I believe him, that this man confessed to him in Raleigh because he said he wanted to give him the whole story. When he found out that there was other evidence, he gave the whole story because he wanted to get it off his chest * ' *
O’Bryant obtained a typewriter and typed Short’s answers into statements. The first statement concerned the attempted robbery of the grocery store. It was begun at 12:30 p. m. and concluded at 1:03. Short implicated David Jones and one Johnson in whose apartment the gun had been found. The second statement was begun at 1:10 and concluded at 1:40. It concerned the liquor store robbery, and Short implicated David Jones, Arthur Jones (David’s brother), and a man named Johnson. Two more statements concerning robberies not in the cases at bar followed. The last one was finished sometime during the afternoon.
O’Bryant did not ask Short to sign the statements upon their completion, because he had discovered that Short did not read well and, O’Bryant testified, he knew police had been accused of forcing defendants to sign statements and he and Short were alone at the time. He therefore asked to have Short’s family come in. About eight o’clock that evening Short’s wife, his sister, and the latter’s fiance came to the Sheriff’s office. O’Bryant explained that he was going to read some statements and, if anything he read was not true, they were to interrupt and say so. O’Bryant read the statements; nobody interrupted; and O’Bryant asked Short if the contents of the statements were true. He answered they were. Then Short, his sister, and the latter’s fiance all signed the statements.
On Sunday morning, September 16th, O’Bryant and Short boarded a plane for ■ Washington. En route O’Bryant talked to Short about whether he wanted to testify before the grand jury; Short said he wanted to tell the truth about the whole thing; and he (O’Bryant) said that provision could be made. They arrived in Washington about noon. The record does not indicate that Short was questioned or otherwise subjected to any procedure, except routine booking, etc., that afternoon or evening. On Monday morning, September 17th, at ten o’clock, Short was presented to a judge sitting in the Municipal Court. A lawyer was appointed, and Short talked briefly to him, telling him he (Short) had signed statements in North Carolina “to come back to Washington, D. C.” Hearing was waived, and Short was bound over to the grand jury.
On October 2nd Short was taken before the grand jury. The transcript of that hearing showed that the prosecutor said to Short, and Short answered:
“Question: Mr. Short, I want you to know that you are before the Grand Jury and that we are going to ask you some questions. I want you to know you don’t have to say anything here if you don’t want to. You don’t have to tell us anything. If you do tell us anything your statement is being taken down and can be used against you at any future trial arising out of any other matters that we talk about here, or any other matters. Do you understand that?
“Answer: Yes.
*876“Question: Knowing that you still want to come in here and testify?
“Answer: Yes.”
The statements made by Short in North Carolina, witnessed by his sister and her fiance, were read to Short before the grand jury, and he was asked if they were true. The transcript shows he answered, “Yes.” On the stand upon the hearing Short said he answered, “No.” On October 8th Short, Johnson, and David Jones were indicted for attempted robbery of the grocery store and, together with Arthur Jones, for robbery of the liquor store. On arraignment Short pleaded not guilty.
On November 21st Johnson turned himself in and became a witness for the Government in both cases. He pleaded guilty in one ease, and the other indictment was dismissed as to him. Motions to suppress the confessions and to dismiss the indictments were made, heard and denied. Trial on the robbery of the liquor store was had on December 12th to 19th, and trial on the attempted robbery of the grocery store began January 15, 1963. Besides other evidence, such as fingerprints, the shotgun, and, in one case, identification by the victims, the Government presented Johnson as a witness in both cases, and it presented the written statements made by Short in North Carolina. The defense put Short’s sister and her fiance on the stand. The juries returned verdicts of guilty in both cases. The appeals now before us are the consolidated appeals from those convictions.
I.
Admissibility of Statements
A.
The court holds Short’s statements to O’Bryant to have been inadmissible under the McNabb-Mallory rule, citing also Upshaw. Upon the facts in the record now before us, no point is presented within the doctrine of McNabb-Mallory-Up-shaw. That doctrine is that “a confession is inadmissible if made during illegal detention due to failure promptly to carry a prisoner before a committing magistrate.” 2 The heart of the doctrine is a delay under federal detention, — not merely delay but delay during detention. The purpose of the doctrine is to require federal officers, over whom the Court has supervisory power (the doctrine is not a constitutional principle), to obey a Rule. The remedy provided by the McN abb line of cases is applicable to confessions made while a federal officer is illegally withholding a prisoner from presentment.
In the cases at bar there was no detention, no holding in custody, by any federal or District of Columbia officer at the time these confessions were made. Short was in the custody of a North Carolina sheriff, being held under a serious charge of violation of a North Carolina law. My brethren spell a custody on O’Bryant’s part from his notation at the time on the warrant, a matter I shall discuss in detail in a moment. There is no shred of evidence that the North Carolina sheriff turned Short over to O’Bryant with permission to take him to a federal magistrate with authority to set him free. And it is fantastic to assume that the sheriff had any such idea. O’Bryant could not have terminated Short’s detention, no matter what he (O’Bryant) did. There simply was no detention by federal authority at that point.
The Supreme Court has met this point squarely, succinctly and clearly. The Second Circuit had the question in United States v. Coppola.3 Buffalo city police had Coppola under arrest for a series of state offenses. FBI agents interrogated him about a bank robbery. He confessed to them. After noon the next day the Buffalo police turned him over to the federal officers, and he was duly presented. The Second Circuit, sitting en banc, held the confessions admissible — “uncoerced confessions made during a detention by state officers which the Federal officials did not induce and were powerless to pre*877vent.” The Supreme Court granted cer-tiorari, heard argument, and then in a one-paragraph Per Curiam opinion affirmed the Circuit.4 The question now before us is precisely the question in Coppola.
It may be that a rule ought to be announced that a confession to a federal officer, made while a person is in the lawful custody of state officers under a state charge, is inadmissible in a federal court. But that would be a new rule. It would not be under the McNabb-Mallory doctrine; no court has ever as yet announced such a rule; and it would be in exact contradiction to the Supreme Court decision on the subject.5
B.
Regardless of the foregoing, Short’s statements were admissible. Short confessed orally to O’Bryant within two or three minutes after O’Bryant, who had just arrived in Raleigh by plane from Washington, began to talk.to him. Some conversation ensued. O’Bryant was interested in a series of robberies — four at the moment. Then, on borrowed equipment, O’Bryant typed out the statements. As heretofore stated, the first typing was begun at about 12:30 and was completed at 1:03 o’clock. The court says that the time of the confession, for the purposes of the Rule, was 12:30 and that the time from 10:30 to 12:30 was unnecessary delay.
We have had this problem a number of times. We had it in Metoyer,6 in Heideman,’7 in Porter,8 in Jackson,9 and in Muschette.10 We have never, until now, so far as I can ascertain, held that a “threshold” confession is inadmissible because of some later minor delay in understanding the details and reducing them to writing.11 The court is now writing new law on this point.
*878The court says it does not now overrule the cited cases. Such being the situation, I submit that the court ought to follow the cases, whether some members disagree with them or not. The case at bar is an even more vivid illustration of the principle involved than are the cases cited. Here the oral confession was made “within * * * two minutes or three minutes”; several offenses and a complicated set of facts were involved; four participants were involved, not all of them in all of the crimes. The inquiring officer was alone, was in strange territory, and had to use borrowed equipment.
C.
The court rests its ruling on this point upon a failure by O’Bryant to take Short before a United States Commissioner or a judge in compliance with Rule 40(b). To make this ruling the court was required to find an unnecessary delay after Short was arrested and before he confessed. In other words, the confession must be due to an illegal detention during an unnecessary delay.
The court says Short was “arrested” at 10:30 Saturday morning. It bases this finding solely upon the fact that O’Bryant wrote “Arrested 9-15-62 10:30 AM” on the warrant he had with him. Of course what O’Bryant meant was that he read the warrant to Short or served a copy upon him. That is “arrest” in normal parlance. The notation had nothing whatsoever to do with a transfer of custody. But in the circumstances of this case delay on O’Bryant’s part must be measured by a period of actual custody. O’Bryant’s delay could not begin until he had control over the prisoner. He had no inherent control over Short; he needed the permission of state officials who were holding Short on a state charge. My brethren say there is no evidence that Short became O’Bryant’s prisoner later than the 10:30 mentioned. That is a pure speculation, if “prisoner” means one in custody. And the speculation is unrealistic. The hour of 10:30 was a very few minutes after O’Bryant’s arrival at the sheriff’s office, he having touched down at the airport at about ten o’clock. The sheriff was not holding Short for O’Bryant. He was holding him on his own account for a serious offense in North Carolina.
The object of Rule 40(b) is to obtain a warrant for removal to another jurisdiction. In this respect it differs from Rule 5(b), which results merely in a holding of the accused in the same jurisdiction. The North Carolina sheriff, in yielding custody of Short, would have been yielding him for removal out of North Carolina. Furthermore Rule 40 (b) requires that when a warrant of removal is issued “the defendant shall be admitted to bail”. So the sheriff would have been yielding Short for admission to bail. In addition to these considerations there is the delicate relationship between state and federal12 authority in criminal cases. That this relationship is not one of unalloyed mutual love and affection is one of the better known facts of judicial administration in our day.
There is no evidence that the sheriff would have released custody at any time prior to the time he did actually make the release, i. e., when O’Bryant was en route to the plane. My brethren say there is no evidence to the contrary; therefore they assume the sheriff would have— indeed that he did — turn Short over to O’Bryant about noon on Saturday, with permission to get a warrant of removal and bail. I think we cannot reverse convictions by speculating facts not in the record before us. And I think the speculation in this case is totally unrealistic. Every consideration obvious on the record indicates that the sheriff would — as he actually did — move with some degree of deliberation. An instantaneous transfer of uninhibited custody to a strange out-of-state officer under the facts of this case seems to me to be beyond the realm of permissible unsupported inference.
*879The sheriff actually released Short to O’Bryant on Sunday morning. The confessions had been given, typed, read to the family, and reaffirmed in their presence. There was no delay on O’Bryant’s part prior to those events. Delay thereafter, if any, was immaterial.13
D.
Other considerations are pertinent:
(a) I emphasize as vehemently as I can that there is a duty — a positive, affirmative duty — to ask a suspected person, before he is presented to a magistrate under a solemn formal charge, whether he knows anything about the alleged offense. To my mind the contrary is the essence of the so-called police state. That would really be police tyranny.
(b) The typing of a purported confession is a protection to the accused as much as it is a weapon for the police. Understanding of oral expressions is often uncertain, recollections are frequently inexact, and memory is characteristically faulty. But with a writing an accused can be charged with no more than, and nothing else but, what he said. Exemplary police procedure requires the reduction of confessions to writing. This requires the facts to be sorted and the statement of them to be accurate. And that takes a bit of time.
(e) The warrant O’Bryant had with him was not a federal warrant. It was issued by our Municipal Court and had the status of a state warrant, good only in the jurisdiction of issue.14 Moreover O’Bryant was not a federal officer but a Metropolitan policeman, having the status of a sheriff or other state officer.15 He had no authority to make an arrest in North Carolina.
(d) There is no evidence or semblance of evidence — and indeed no claim — that Short was subjected to any form of coercion or to extended questioning for the purpose of obtaining a confession. Lieutenant O’Bryant’s conduct was characterized by all concerned on the scene at the time, including members of Short’s family, as exemplary; he, a Negro officer, was “rather nice to Willie.” My view is that his conduct throughout deserves hearty commendation.
(e) Short was repeatedly told before he spoke that he need not make a statement and that if he made one it could be used against him. He was warned. Nevertheless he talked; he had a right to, as I understand the law.
II
This question is whether the admission of Short’s confession, with all other names deleted, was reversible error in respect to all other defendants. Short’s confessions were introduced in each trial in which he was a defendant, with the names of his co-defendants deleted. In the robbery trial the jury was cautioned by the trial judge, immediately before the confession was read to them, that the confession represented evidence against Short only and was not to be considered against David and Arthur Jones. Further admonitions to this effect were included in the court’s charge to the jury at the close of the case. Similarly, in the attempted robbery trial, the jury was cautioned by the trial judge, immediately after the confession was read to them, that the confession was evidence against Short only; the instruction was also re*880peated at the end of the case. In each instance counsel for the defense expressed satisfaction with the instructions as given.
The course followed by the trial judge, deleting the names of the co-defendants and twice in each case admonishing the jury on the point, was in accordance with established practice in federal courts. Sitting en banc we specifically referred to the rule with approval as recently as January, 1963, in Dykes v. United States.16 Implicitly we approved it in Kramer v. United States.17
The Supreme Court has had this problem in several contexts in recent years. In the Anderson case the Court found that, although the trial judge admitted the disputed confessions under a restriction, “his charge bound the jury to no such restricted use of the confessions”, and that from what he told them the jury had every right to believe it could consider against every defendant the whole proof made at the trial.18 The Court reversed. In Malinski,19 a state case, the trial judge substituted letters for the names of the other defendants and gave clear instructions as to the limitation. The Court affirmed. In Delli Paoli 20 the Court found the instructions as to limited use of the confession to be clear, and assumed the jury followed the instructions. The Court affirmed. We think it clear that under the law as it is firmly established, the trial court in the case at bar was correct in its treatment of the matter.
This court now relies upon a frank dictum by Judge Learned Hand.
The rule now announced, that statements by one defendant cannot be admitted in a joint trial even with repeated cautions by the trial judge that the evidence is admitted against the one defendant alone, will of course largely eliminate joint trials of joint offenders. My dissenting brethren and I think the resulting confusion, multiplied delays, and frequent raw injustice are not in the- best interest of the administration of justice.
Ill
This part of Judge Edgerton’s opinion concerns Short’s appearance before the grand jury. It does not have the concurrence of a majority of the court and so is a dissent.
Our brethren say that Short’s constitutional right against self-incrimination was violated when he was presented to the grand jury, and that therefore the indictment should be dismissed. Distilled, the point is that inadmissible testimony was received by the grand jury. But the cases are clear that the reception of inadmissible evidence does not invalidate a resultant indictment. Lawn v. United States 21 is specific on the point.22 The claim by petitioners in that case was that evidence obtained from them in violation of the Fifth Amendment was received by the grand jury. The Court, citing Holt23 and Costello,24 said that the admission of such evidence would not invalidate the indictment.
The late Chief Judge Charles E. Clark, writing for the Second Circuit in United *881States v. Cleary,25 examined this subject exhaustively. Cleary, having been arrested, was subpoenaed to appear before the grand jury and, after warning, testified at length, deeply incriminating himself. Largely upon this testimony the grand jury indicted him. The District Court dismissed the indictment. The Circuit Court reversed and reinstated the indictment. Judge Clark pointed out that the District Court’s reasoning in the case might well apply where an accused is called upon to testify at his own trial; but, he said, “it must be noted that a grand jury investigation, though in a sense a criminal proceeding, [citation omitted] is not closely analogous to a criminal trial.” “Basically,” he said, citing a long list of cases and many scholarly authorities, both American and English, “the grand jury is a law enforcement agency.” And further, he pointed out, “Appearing before a grand jury is not in itself an unduly coercive situation. * * * That he [the witness] was nervous and confused during his testimony — a not unusual reaction of a witness — is not sufficient to render the testimony involuntary. The important factor is the lack of even the slightest suggestion that government officials applied any pressure or engaged in any form of misconduct which contributed to his testifying.” The entire discussion of Judge Clark is pertinent to the problem in the case at bar and should be read in this connection. The view of our dissenters is directly contrary to Lawn and Cleary.
Three facts in the case at bar put the matter beyond the realm of dispute. First, before he spoke to the grand jury, Short was advised four times that he need not speak: once orally by O’Bryant in Raleigh; once in the opening of his written statement, read in the presence of his family; once by a judge in open court; and once by the prosecutor before the grand jury. Our dissenters say nobody told Short specifically he need not speak to the grand jury if taken there. The transcript of the grand jury proceedings, quoted above, shows that the prosecutor was crystal clear — “You don’t have to tell us anything.” Second, the evidence shows Short wanted to talk to the grand jury. While on the witness stand in court upon the motions to dismiss and suppress, he was asked why he wanted to go before the grand jury, and he answered, “Because I know that I hadn’t did anything.” Surely a statement of the reason why he wanted to go is a respectable implication that he wanted to go. And surely when that question was asked he would have answered, “I didn’t want to go,” if indeed that had been in his mind. Moreover O’Bryant testified specifically on the point, and the transcript of the grand jury proceedings is indisputable. Third, the trial jury was not told what Short said or did before the grand jury. Thus whatever he said or did there was no prejudice upon his trial.
We cannot agree with the reasoning of our brethren. They say that mere interrogation before a grand jury, merely being brought there, may arouse suspicion and therefore is prohibited. But the grand jury is an investigating body. If it is to function at all, it must ask questions. Our brethren say testimony before a grand jury might be used at trial, even though it was not so used in this case. It seems to us we should at least await a proper case. Our brethren say Short was young, indigent and unschooled. He was 22 years old, married, and had two children. He had a job at a warehouse in his home town of Zebulon and had had it for a month before he was arrested. There is no evidence that he could not have had that job any time he went home. His sister testified he went to the third or fourth grade at a public high school. There is no evidence that he could not have continued there; a school drop-out is not ipso facto immune from liability for crime.
Our dissenters would have us adopt a new rule of law, a rule which ignores the fundamental differences between the *882grand jury and a trial, a rule not accepted in any federal jurisdiction and used by only a few states.26
IV
Judge Edgerton does not have the concurrence of a majority of the court on this point, and so his opinion on it is a dissent.
The question is whether the indictment must be dismissed because of the situation in respect to counsel. The Supreme Court has twice stated the rule respecting the validity of indictments in a similar context. In Costello v. United States 27 the Court, in an opinion by Mr. Justice Black, said:
“An indictment returned by a legally constituted and' unbiased grand jury, like an information drawn by • the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.”
And in Lawn v. United States28 the Court, in an opinion by Mr. Justice Whit-taker, without dissent on the point, used exactly the same language.
In the case at bar the grand jury which returned this indictment was legally constituted. It had jurisdiction. No allegation is made that it was biased.
Moreover Short had a lawyer. One was appointed for him at the preliminary hearing where he was bound over to the grand jury. No rule, so far as I know, says that a person who has had a lawyer and has been fully advised of his rights by a judicial officer must again consult a lawyer before he can be taken before a grand jury.29 My brethren agree that Short could not have had a lawyer with him in the grand jury room.30 That being so, the most a lawyer could have done would have been to advise him that he need not speak. But he had already been given that advice by a judicial officer in open court in the presence of the lawyer, and he was formally given a full warning to the same effect by the prosecuting attorney before he spoke to the grand jury. To say that a person has a right to a lawyer under such circumstances for such purely theoretical purposes is to assert the necessity of a ritual without substance. The constitutional guarantee is not of empty gestures. Our dissenting brethren refer to Short as “un-counseled”. That, of course, is inaccurate.
Our dissenting brethren (in Part V of the opinion) characterize the statement twice made by the Supreme Court, in Costello and in Lawn, as “broad language to the effect that ‘ [quoting the words we have above quoted].'” They say the context shows a drastically limited meaning to the plain words. They say “Due deference forbids us to interpret the opinion [in Costello] as containing a vast dictum * * We view the quoted statement by the Court as clear and complete. It phrases a well-established rule. It is consistent with a plentitude of past authority, some of which is cited in the opinion. We apply this ruling of the Supreme Court as we find it.
*883V
In this part of his opinion Judge Edg-erton is in dissent. He maintains that the indictment against Short should be dismissed for the reasons advanced in Parts III and IV of the opinion.
In this Part V Cassell v. Texas31 is relied upon. Our brethren say they see neither reason nor authority for distinguishing that case. There the Supreme Court held that the grand jury was illegally constituted; therefore the case fell within the familiar and well-established rule that an illegal grand jury cannot return a legal indictment. Our brethren say, in effect, that a constitutional question is a constitutional question; there was such a question in Cassell, and there is one here; the indictment was invalid in Cassell; therefore the indictment is invalid here. We think Cassell does not remotely approach the question in the case now at bar.
VI
On this point Judge Edgerton speaks for the court. The present opinion is in dissent.
The court directs the District Court to examine the evidence taken by the grand jury and to determine “what testimony tending to support the indictments, other than Short’s confessions, was before the grand jury.” The District Court is then to determine whether the indictments should be dismissed.
Prior to trial counsel for Short made a motion to dismiss the indictments on the ground that Short was brought before the grand jury, in police custody and without counsel, to testify against himself. The motion was argued to the court. The judge quickly raised a question as to other evidence.32 He suggested that he inspect the grand jury minutes He said, “I’m not going to assume that his own testimony was all there was.” Counsel replied that “Regardless, Your Honor, of what other testimony there was,” Short’s constitutional rights had been violated. The judge pressed for a clear statement of counsel’s position. Counsel urged with considerable emphasis that being brought before the grand jury without counsel and without being advised of his rights violated the person’s rights. The prosecutor interjected with a suggestion that counsel stipulate that there was other evidence before the grand jury, that the Government presented evidence as to a fingerprint of Short’s in one of the cases. Defense counsel said that had nothing to do with the case. The court then said: “I am assuming, because I have no right not to assume,— I am assuming that there was other valid evidence before the grand jury to justify his indictment in this case. Now you are not arguing to me that there was no other evidence before the grand jury, are you ?” The court then denied the motion to dismiss.
Thus it is perfectly clear on the record that motions to dismiss were made and argued; that Short’s counsel did not allege there was no other evidence than Short’s testimony; and that he offered no proof to that effect. He ignored the judge’s offer to look at the grand jury’s minutes, and he ignored his adversary’s proffer to stipulate that there was other evidence. He went to the court on the proposition that Short’s illegal presentment to the grand jury invalidated the indictment regardless of what evidence was before the grand jury.
So it is clear that the District Court itself before the trial raised the question of other evidence, and that counsel for the defense chose to assume there was such evidence and declined to probe or to join in a probe of the matter. Thus this court’s present order directs a retread*884ing of ground already trod, and reverses the trial court on a point examined, considered and decided by it.
Several well-established propositions of law bear upon the problem. First, as we have stated it in Carrado,33 “A motion to quash an indictment for the absence or incompetency of evidence before the grand jury is addressed to the discretion of the trial court and its action thereon will not be reversed except upon a showing of abuse of discretion.” In United States v. Tane 34 the Second Circuit made precisely the same statement in almost the same words, and cited Car-rado. There is ample other authority to the same effect.35 Second, as we said in Carrado, “It is also true that an appellant who attacks an indictment returned in due form on the ground that it was returned without sufficient evidence, has the burden of clearly showing the absence of such evidence.” 36 Third, there is a strong presumption of regularity accorded the findings of a grand jury. Multitudinous authorities support this proposition.37 Four, even courts which held (as some federal courts did before Costello) that at least some competent evidence must be before the grand jury, held that courts will not inquire into the sufficiency of that evidence.38
The trial court acted in strict accord with the foregoing well-established principles. It made insistent inquiry into the subject. Its inquiry was met by a disclaimer of interest on the part of defense counsel and, on the other side, by a proffer of proof by the prosecutor. The judge emphasized the burden upon the movant of the motion and the presumption of regularity — e.g., “I am assuming, because I have no right not to assume * * It ruled that, absent any claim or proof that no competent evidence was before the grand jury, the motion to dismiss must be denied. We say that the disposition of the matter by the trial court was eminently correct.
The present order of this court is counter to all the foregoing principles. The court accords no recognition to the discretion of the trial court in disposing of the motion to dismiss. It does not find an abuse of discretion; indeed no abuse could be found. This court accords no recognition to the presumption of regularity to grand jury proceedings. Instead of holding to the burden of proof upon the movant, this court holds that, even when counsel upon specific inquiry declines to seek proof, the trial judge commits reversible error unless he himself sua sponte determines what evidence, if any, there was. We think the proposed order of this court is clearly erroneous.
This court cites and relies upon United States v. Tane, supra. In that case the trial judge had granted a motion to dismiss. The Court of Appeals held this to be within his discretion and so affirmed. *885How this ruling can be authority for reversing a trial judge who denied such a motion we do not see.
It is made quite clear in Judge Edger-ton’s opinion that four of our brethren would dismiss these indictments upon the ground that two of Short’s constitutional rights were violated by his being taken before the grand jury, and that this fact vitiated the indictments. This position does not involve any question of evidence, as is made clear in the first paragraph of Point V and in Point VI. The opinion also states clearly that two others of our brethren would have the District Judge determine what testimony other than Short’s confession was before the grand jury and “then decide whether the indictments of Short should be dismissed.” But the ground upon which the District Court is to base its decision is by no means clear. Apparently testimony other than the confessions is to play a part. Apparently, if there be such other testimony, the court would deny the motion to dismiss; if there be none, it would grant the motion. Thus the ruling would depend upon the testimony. But the opinion further says that these two judges are of opinion that the taking of the uneounseled defendant before the grand jury should not be countenanced by us in the exercise of our supervisory power. From this latter statement it would appear that testimony has nothing to do with the decision the District Judge must make. Thus two quite different propositions are posed. One is that, if an accused is illegally taken before a grand jury, he cannot be made to answer for his crime; any indictment against him must be dismissed. The other proposition is that an indictment must be dismissed unless evidence other than confessions such as Short’s was before the grand jury.
No claim is made that Short’s confession was not made. No claim is made that it was not true. No claim is made that it was coerced in the sense that it was extracted by violence, or promises, or threats. Thus there is no claim that the confession was not competent evidence within the meaning of that term in the rules of evidence. The claim is that it was inadmissible in evidence under the Mallory rule 39 and that it was not “competent” evidence because it was inadmissible.
This is precisely the sort of thing the Supreme Court was dealing with in Costello, supra. Although the Government had presented 144 witnesses and 368 exhibits at that trial, only three witnesses, none of whom had first-hand knowledge, testified before the grand jury. Costello moved to dismiss the indictment because it was based on hearsay, i. e., incompetent evidence. The Court noted that “Varying views have been expressed concerning whether indictments may be challenged because based in whole or in part on incompetent evidence”, citing cases and texts.40 The Court, speaking through Mr. Justice Black and without dissent, said:
“ * * * But neither the Fifth Amendment nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act. * * * There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. * * * And in this country as in England of old the grand jury has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor. As late as 1927 an English historian could say that English grand juries were still free to act on their own knowledge if they pleased to do so. «• * *
“In Holt v. United States, [31 S.Ct. 2, 54 L.Ed. 1021], this Court *886had to decide whether an indictment should be quashed because supported in part by incompetent evidence. Aside from the incompetent evidence ‘there was very little evidence against the accused.’ The Court refused to hold that such an indictment should be quashed, pointing out that ‘The abuses of criminal practice would be enhanced if indictments could be upset on such a ground.’ 218 U.S., at 248 [31 S.Ct. at 4]. The same thing is true where as here all the evidence before the grand jury was in the nature of ‘hearsay.’ If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, [7] like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.
“Petitioner urges that this Court should exercise its power to supervise the administration of justice in federal courts and establish a rule permitting defendants to challenge indictments on the ground that they are not supported by adequate or competent evidence. No persuasive reasons are advanced for establishing such a rule. It would run counter to the whole history of the grand jury institution, in which laymen conduct their inquiries unfettered by technical rules. Neither justice nor the concept of a fair trial requires such a change. In a trial on the merits, defendants are entitled to a strict observance of all the rules designed to bring about a fair verdict. Defendants are not entitled, however, to a rule which would result in interminable delay but add nothing to the assurance of a fair trial.” 41
In the Costello case the Court was dealing with a precise question upon which courts in this country and text authorities had theretofore differed. It recited the ancient English rule and unmistakably adopted it. It settled the problem in so far as we are concerned.
I am of opinion that the judgment of the District Court should be affirmed.
I am authorized to state that Circuit Judges Wilbur K. Miller, Danaher and Bastían agree with the foregoing opinion.
. Now the District of Columbia Court of General Sessions.
. Upshaw v. United States, 335 U.S. 410, 413, 69 S.Ct. 170, 93 L.Ed. 100 (1948).
. 281 F.2d 340 (1960).
. Coppola v. United States, 365 U.S. 762, 81 S.Ct. 884, 6 L.Ed.2d 79 (1961).
. For similar cases holding confessions given during a period of state detention admissible, see Hollingsworth v. United States, 321 F.2d 342 (10th Cir. 1963); United States v. Sailer, 309 F.2d 541 (6th Cir. 1962), cert. denied, 374 U.S. 835, 83 S.Ct. 1884, 10 L.Ed.2d 1057 (1963); Morgan v. United States, 111 U.S.App.D.C. 127, 294 F.2d 911 (D.C.Cir. 1961), cert. denied, 368 U.S. 978, 82 S.Ct. 482, 7 L.Ed.2d 439 (1962); Tillman v. United States, 268 F.2d 422 (5th Cir. 1959); Carpenter v. United States, 264 F.2d 565 (4th Cir.), cert. denied, 360 U.S. 936, 79 S.Ct. 1459, 3 L.Ed.2d 1548 (1959); Stephenson v. United States, 257 F.2d 175 (6th Cir. 1958); Papworth v. United States, 256 F.2d 125 (5th Cir.), cert. denied, 358 U.S. 854, 79 S.Ct. 85, 3 L.Ed.2d 88 (1958); Horne v. United States, 246 F.2d 83 (5th Cir.), cert. denied, 355 U.S. 878, 78 S.Ct. 143, 2 L.Ed.2d 109 (1957); Brown v. United States, 228 F.2d 286 (5th Cir. 1955), cert. denied, 351 U.S. 986, 76 S.Ct. 1055, 100 L.Ed. 1500 (1956).
. Metoyer v. United States, 102 U.S.App. D.C. 62, 250 F.2d 30 (1957).
. Heideman v. United States, 104 U.S.App. D.C. 128, 259 F.2d 943 (1958), cert. denied, 359 U.S. 959, 79 S.Ct. 800, 3 L.Ed. 2d 767 (1959).
. Porter v. United States, 103 U.S.App.D.C. 385, 258 F.2d 685 (1958), cert. denied, 360 U.S. 906, 79 S.Ct. 1289, 3 L.Ed.2d 1257 (1959).
. Jackson v. United States, 114 U.S.App.D.C. 181, 313 F.2d 572 (1962).
. Muschette v. United States, 116 U.S.App.D.C. 239, 322 F.2d 989 (1963), vacated and remanded on other grounds, 378 U.S. 569, 84 S.Ct. 1927 (1964).
. In addition to the cases cited above, see Bailey v. United States, 117 U.S.App.D. C. 241, 328 F.2d 542 (1964) ; Hughes v. United States, 113 U.S.App.D.C. 127, 306 F.2d 287 (1962); Turberville v. United States, 112 U.S.App.D.C. 400, 405-406, 303 F.2d 411, 416-417 (1962); Sawyer v. United States, 112 U.S.App.D.C. 381, 303 F.2d 392, cert. denied, 371 U.S. 879, 83 S.Ct. 150, 9 L.Ed.2d 116 (1962); Lockley v. United States, 106 U.S.App.D.C. 163, 270 F.2d 915 (1959). Cf. Goldsmith v. United States, 107 U.S.App.D.C. 305, 313-315, 277 F.2d 335, 343-345, cert. denied sub nom. Carter v. United States, 364 U.S. 863, 81 S.Ct. 106, 5 L.Ed.2d 86 (1960). For cases from other circuits see Evans v. United States, 325 F.2d 596 (8th Cir. 1963); United States v. Long, 323 F.2d 468- (6th Cir. 1963); United States v. Ladson, 294 F.2d 535 (2d Cir. 1961), cert. denied, 369 U.S. 824, 82 S.Ct. 840, 7 L.Ed.2d 789 (1962); Muldrow v. United States, 281 F.2d 903 (9th Cir. 1960); Holt v. United States, 280 F.2d 273 (8th Cir. 1960), cert. denied, 365 U.S. 838, 81 S.Ct. 750, 5 L.Ed.2d 747 (1961).
. In the eyes of North Carolina, the District of Columbia is federal.
. United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140 (1944) ; Jackson v. United States, 114 U.S.App.D.C. 181, 313 F.2d 572 (D.C.Cir. 1962).
. Judge Rice, in Kirkes v. Askew, 32 F. Supp. 802 (E.D.Okl.1940), collects a number of cases on the point. Even assuming that the warrant, like one issued under Fed.R.Crim.P. 4, was valid outside the District of Columbia, O’Bryant had no authority to execute it. See D.C.Code § 4-138 (1961 ed.).
. See D.C.Code § 4-136 (1961 ed.), which bestows upon members of the police force “all the common-law powers of constables,” with certain enumerated exceptions. At common law the acts of an officer beyond his jurisdiction were void. See 47 Am.Jur. Sheriffs, Police, and Constables § 29 (1943), and cases cited therein.
. 114 U.S.App.D.C. 189, 190, 313 F.2d 580, 581, cert. denied, 374 U.S. 837, 83 S.Ct. 1889, 10 L.Ed.2d 1059 (1963).
. 115 U.S.App.D.C. 50, 317 F.2d 114 (1963).
. Anderson v. United States, 318 U.S. 350, 356-357, 63 S.Ct. 599, 87 L.Ed. 829 (1943).
. Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945).
. Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957).
. 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1956).
. And see Coppedge v. United States, 114 U.S.App.D.C. 79, 311 F.2d 128 (D.C.Cir. 1962), cert. denied, 373 U.S. 946, 83 S.Ct. 1541, 10 L.Ed.2d 701 (1963).
. Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910).
. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956).
. 265 F.2d 459, cert. denied, 360 U.S. 936, 79 S.Ct. 1458, 3 L.Ed.2d 1548 (1959).
. See generally Orfield, The Federal Grand Jury, 22 F.R.D. 343, 431-432 (1959); 45 Iowa L.Rev. 564 (1960); 67 Vale L.J. 1271 (1958); 38 A.L.R.2d 237, 238 (1954).
. Supra note 24, 350 U.S. at 363, 76 S.Ct. 406.
. Supra note 21, 355 U.S. at 349, 78 S.Ct. 311.
. Arguments that such a rule exists were rejected in Gilmore v. United States, 129 F.2d 199, 203 (10th Cir.), cert. denied, 317 U.S. 631, 63 S.Ct. 55, 87 L.Ed. 509 (1942). See also United States v. Scully, 2 Cir., 225 F.2d 113, cert. denied, 350 U.S. 897, 76 S.Ct. 156, 100 L.Ed. 788 (1955); Orfield, The Federal Grand Jury, 22 F.R.D. 343, 425 (1959); cf. Escute v. Delgado, 282 F.2d 335 (1st Cir. 1960), cert. denied, 365 U.S. 883, 81 S.Ct. 1033, 6 L.Ed.2d 193 (1961); Fed.R.Crim.P. 44, and Advisory Committee’s Notes thereto.
. In re Groban, 352 U.S. 330, 333, 77 S. Ct. 510, 1 L.Ed.2d 376 (1957). Fed.R. Crim.P. 6(d) clearly forbids the presence of counsel by limiting those present while the grand jury is in session to “[ajttor-neys for the government, the witness under examination, interpreters when needed, and * * * a stenographer”.
. 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950).
. When counsel for Short began his argument the following occurred:
“The Court: Now you are assuming —you must be assuming that there was no other evidence before the grand jury of his guilt except his own testimony.
“Mr. Kramer [Defense Counsel] : I do not know what evidence was brought before the grand jury.”
. Carrado v. United States, 93 U.S.App.D.C. 183, 188, 210 F.2d 712, cert. denied, 347 U.S. 1018, 74 S.Ct. 874, 98 L.Ed. 1140 (1954).
. 329 F.2d 848, 853 (1964).
. See, e.g., United States v. Rosenburgh, 74 U.S. (7 Wall.) 580, 19 L.Ed. 263 (1868); Nanfito v. United States, 20 F.2d 376 (8th Cir. 1927); Stewart v. United States, 300 F. 769 (8th Cir. 1924).
. Supra note 33.
. Carrado v. United States, supra note 33; United States v. Nunan, 236 F.2d 576, 594 (2d Cir. 1956), cert. denied, 353 U.S. 912, 77 S.Ct. 661, 1 L.Ed.2d 665 (1957); Beatrice Foods Co. v. United States, 312 F.2d 29, 39 (8th Cir.), cert. denied, 373 U.S. 904, 83 S.Ct. 1289, 10 L.Ed.2d 199 (1963); 111 U.Pa.L.Rev. 1154, 1157 n. 20 (1963); 4 Wharton, Criminal Procedure § 1852 n. 4 (1957).
. 4 Wharton, Criminal Procedure § 1852 n. 3, citing Anderson v. United States, 273 F. 20 (8th Cir.), cert. denied, 257 U.S. 647, 42 S.Ct. 56, 66 L.Ed. 415 (1921), and Olmstead v. United States, 19 F.2d 842, 53 A.L.R. 1472 (9th Cir. 1927), affi’d on other grounds, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928). See also Murdick v. United States, 15 F.2d 965, 968 (8th Cir. 1926), cert. denied sub nom. Clarey v. United States, 274 U.S. 752, 47 S.Ct. 765, 71 L.Ed. 1332 (1927).
. We hardly need pause to say that Mallory does not rest upon constitutional grounds but upon the supervisory power of the Supreme Court.
. 850 U.S. at 361, 76 S.Ct. at 407, n. 4.
. 350 U.S. at 362-364, 76 S.Ct. 406.