(dissenting) :
This case seems to me to present the following serious questions:
(1) Was the oral confession or the written confession obtained from appellant during a period of unnecessary delay in bringing appellant before a magistrate, under the requirements of Rule 5(a), and the decision in Mallory v. United States?
(2) Can appellant be deemed to have waived objection to the wrongful use of either confession at trial, and, if not,
(3) Did the introduction of either confession create a significant possibility of prejudicing the jury, not. merely on the appellant’s credibility, but on the testimony crucial to appellant’s defense?
In my view, the oral confession was obtained in clear violation of Rule 5(a), Fed.R.Crim.P. Appellant entered a police station at 6 A.M., December 15, 1962, identified and surrendered himself and his gun, and stated that he had shot Jerome Taylor. He further stated that he would not answer any more questions. Two minutes earlier the police had gone to the house where the shooting occurred and had taken down the names of the witnesses. At 6:05 or 6:10 appellant was taken to the scene of the shooting, where he was questioned by the police. At that time he again refused to say anything beyond a simple admission of the shooting. Appellant and several witnesses to the shooting were brought to the police station at 6:20 or 6:30 A.M. The police again questioned appellant, this time for a period of ten or perhaps twenty minutes. Appellant then gave an oral confession in elaboration of his original statement. A written confession was prepared, and Perry signed it. Later in the day, he was taken before a committing magistrate.
In Naples v. United States, 113 U.S. App.D.C. 281, 284, 307 F.2d 618, 621 (1962), we said:
“After the admissions by Naples, the police clearly were in position to present him before a committing magistrate. Available then was the further evidence to be supplied by the apartment manager who had discovered the body. The testimony of the coroner and that of police at the scene could have been adduced.”
After Perry had twice admitted the shooting, and after the police had had an opportunity to adduce evidence from witnesses to the affair and the officers at the scene, and to examine the revolver in which five rounds of ammunition had been expended, the police — in the words of the Naples case — “clearly were in position to present * * * [Perry] before a committing magistrate.” In Naples, this court sitting en banc found a Mallory violation where the defendant *817had been brought back to the scene of the crime and there questioned, following his incriminatory statements at the police station. Judge Danaher, writing for the majority, emphasized that Naples was questioned during a period when he was “unwarned and uncounseled.” The same is true in this case.1 Here the police went even further than they had with Naples, for they returned Perry to the station for further questioning.
The police practice here clearly violates the strictures of the Supreme Court in Mallory v. United States, 354 U.S. 449, 454, 455, 77 S.Ct. 1356, 1359, 1 L.Ed. 2d 1479 (1957). The Supreme Court there held that an arrested person “is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt,” and that “the delay must not be of a nature to give opportunity for the extraction of a confession.” Contrary to the Supreme Court’s mandate, Perry was not brought “before a judicial officer as quiekly as possible so that he * * * [might] be advised of his rights and so that the issue of probable cause * * * [might] be promptly determined,” but was subjected to interrogation that more than lent itself to the elicitation of damaging statements.
This case is strikingly similar to Spriggs v. United States, 118 U.S.App. D.C. 248, 335 F.2d 283 (1964). Spriggs was questioned during a form-filling process after arrest and prior to arraignment. As in the instant case, the police continued the interrogation after the prisoner twice indicated that he wished to say nothing. Spriggs holds that time is not decisive, and that the confession must be excluded if any of the delay is used for the purpose of obtaining a confession.
“ * * * time is but one factor. There always remains the question whether the time was utilized to obtain a confession by secret police interrogation after arrest and prior to a magistrate’s hearing. For a confession so obtained is not ‘spontaneous’ * * Supra at 251, 335 F.2d at 286.
In Spriggs, we ruled the confession inadmissible. I think we should do likewise in this case. Here, as in Spriggs, the police had more than enough evidence to present the prisoner to a magistrate. Unlike the delay in Heideman v. United States, 104 U.S.App.D.C. 128, 131, 259 F.2d 943, 946 (1958), cert. denied, 359 U.S. 959, 79 S.Ct. 800, 3 L.Ed.2d 767 (1959), the delay here between arrest and confession was not “consumed only by the [preliminary] questions * * * and by the preparing of papers, booking, photographing, fingerprinting and transportation.” 2 See Coleman v. United States, 114 U.S.App.D.C. 185, 313 F.2d 576 (1962). The court in Spriggs distinguishes Heideman as involving questioning justified by the police need to determine whether they had the right man. Supra at 251, n. 7, 335 F.2d at 286, n. 7.
Jackson v. United States, 114 U.S.App. D.C. 181, 184, 313 F.2d 572, 575 (1962), does not support the Government’s position, and in fact provides a standard which clearly renders the confession in this case inadmissible. In Jackson, appellant “freely and spontaneously admitted his participation in the crime as soon as Lt. Daly began to talk with him *818about 10:30 a. m.”3 Here, appellant, on two separate occasions following his arrest, indicated his unwillingness to discuss the details of the crime.4 Yet the police, having enough evidence to present appellant to a magistrate,5 and' having no reason to suspect they had the wrong man, nevertheless persisted in subjecting appellant to additional interrogation.
Defense counsel for Perry objected to the officer’s testimony about the detailed oral confession, “on the ground it violates the Mallory rule.” 6
While I doubt whether the erroneous admission of the details of a confession, over defendant’s objection, could ever be deemed harmless error,6 7 in this case the use of the confession was unquestionably prejudicial. The officer testified that Perry said “Taylor started to yell at her [Lenora Miles] and slapped her a couple of times and knocked her down. He said he got up, went down in the basement and got a gun and came back and started shooting at him.” The defendant testified on the stand, however, that Taylor
“grabbed Lenora again and pushed her up against the buffet, grabbed her around the neck and was choking her and she was going down on her knees gasping for breath.
* * * * * *
“He was choking her for quite some time * * *.
“ * * * when I seen that nobody could do anything to prevent him from choking her and she was at the sideboard going down, she was struggling, trying to get up, I went downstairs and got the gun. ******
“I went downstairs and it was in the drawer and I just reached in there and got it and came back upstairs and started shooting.”
One of the crucial issues before the jury was whether the defendant used more force than was necessary under the circumstances. If the omission of any reference to “choking” in the confession were construed by the jury as proof that Mr. Taylor had not been choking Miss Miles, but had merely slapped her and knocked her down, the jury might well have concluded that appellant used excessive force. Indeed, in its closing argument the Government asserted that Miss Miles had merely been struck, and in its direct examination of the police officer, Government counsel emphasized, several times, that appellant had said only that Miss Miles had been struck and knocked down.8
“The Government argues that, in any event, the admission of the written confession was harmless error, being merely cumulative. It may be seriously questioned whether any written and signed confession in a criminal case can ever be merely cumulative. A confession is a most persuasive form of proof. It is difficult to conceive its admission being non-prejudicial to the defendant under any circumstances.” (Footnotes omitted).
*819The fact that a second confession (in writing) was introduced by the prosecution, without objection, cannot conceivably render the erroneous admission of the first confession “harmless error.” Defense counsel’s decision not to object was obviously made in light of the erroneous decision of the court to admit the previous confession. The first confession would cast doubt on the defendant’s testimony that Miss Miles was being choked when he left to get a gun, and that Taylor, was about to assault her again when the defendant returned with the gun. Since that first confession was so harmful to the defense, it was perhaps wise strategy for the defendant not to object strenuously to the admission of the second confession, since that statement contained language which could be construed as consistent with “choking” and did not contain language tending to contradict defendant's testimony about the subsequent assault. There would seem to be no doubt that the first confession was quite harmful to the defendant. Certainly the fact that another, less harmful, confession was later admitted into evidence (and probably would have been objected to in the absence cf the first confession) did not make the first confession any more admissible or less harmful.
I respectfully dissent.
Before BAZELON, Chief Judge, and FAHY, WASHINGTON, DANAHER, BASTIAN, BURGER, WRIGHT and McGOWAN, Circuit Judges, in Chambers.
ORDER
PER CURIAM.There not being a majority of the circuit judges of this circuit in favor of a rehearing of the above-entitled • case by the court en banc, the petition for rehearing en banc is denied.
Dated: January 8, 1965
FAHY, Circuit Judge, did not participate in the foregoing order.
Statement of WRIGHT, Circuit Judge, with whom BAZELON, Chief Judge, joins, for their votes favoring rehearing en banc.
The panel opinion in this case introduces the latest in a series of “doctrines” which, at least to me, appear to circumvent the teaching of the Supreme Court in Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), and McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), as well as the decisions of this court in Spriggs v. United States, 118 U.S.App.D.C. 248, 335 F.2d 283 (1964); Jones v. United States, 113 U.S.App.D. C. 256, 307 F.2d 397 (1962); Naples v. United States, 113 U.S.App.D.C. 281, 307 F.2d 618 (1962); and Williams v. United States, 113 U.S.App.D.C. 7, 303 F.2d 772, cert. denied, 369 U.S. 875, 82 S.Ct. 1145, 8 L.Ed.2d 277 (1962). In these eases the Supreme Court and this court have made it clear that ordinarily, and at least until the accused has been advised of his rights and has been accorded the additional protections the law provides, criminal convictions are to be based on evidence produced by proper police investigation and not out of the mouth of the accused.1 Many years ago this country made its decision on our system of criminal justice. We chose an accusatorial system over the inquisitorial type, and the essential difference between the two relates to the use of the accused by the police in obtaining evidence for his conviction.2
*820The new peripatetic principle announced in the panel opinion here will no doubt come to be called the “continuous movement doctrine.” 3 It is of the same genre and purpose, and of the same general genesis, as the “reaffirmation doctrine,”4 of recent memory, and the “spontaneous declaration doctrine,” 5 of which I shall have more to say on an upcoming occasion. In the present case the “continuous movement” began when the appellant voluntarily appeared at the police station and announced that he had shot a man. The police were already aware of this fact, and indeed were out looking for appellant. Instead of booking him and then taking him without unnecessary delay to the Commissioner for instruction as to his rights in the circumstances in which he found himself, the police took him back to the scene of the crime. There, as at the police station, he was questioned and refused to say more than that he shot the victim. Police at the scene, however, learned from the witnesses there present that the shooting was the result of a triangular affair. On leaving the scene the police returned appellant to the station where again, instead of booking him and bringing him without unnecessary delay to the Commissioner, the police subjected him to interrogation which resulted in oral and written statements, both of which were used against him at the trial. *
I must confess to a complete inability to distinguish between the statements used against appellant in this case and those ordered excluded in the cases herein cited. And I must also say that the “continuous movement doctrine” helps me very little in understanding why the panel did not follow these prior precedents of this court and the Supreme Court.6
. There is no evidence in the record that any police officer took the trouble to advise Perry of his rights.
. The Heideman case held that the police are entitled to ask an arrested person what he knows about a crime, and, “If he denies knowledge,” whether he wishes to comment on the evidence, and “If the suspect continues to deny knoioledge,” whether he has anything further to say. Here, the accused had admitted the offense, the police had abundant additional evidence to that effect; the possibility, emphasized in Heideman, of “no charge being made” was virtually nil. Under these circumstances it would be facetious to argue that appellant was being questioned for his own good.
. Metoyer v. United States, 102 U.S. App.D.C. 62, 250 F.2d 30 (1957), involved a confession made “at once” in response to “the opening question of the Washington police sergeant.”
. Upon giving himself up and admitting the shooting he said “I am not answering any more questions.” At the house he “stated that he did do the shooting but he wasn’t going to say anything else.”
. And if they did not think they had such evidence they should have released appellant. See Naples v. United States, supra.
. I cannot see how defendant’s failure to request a hearing detracts from the strength of his objection, especially since the only matter in serious dispute was a question of law, not of facts.
. See Jones v. United States, 113 U.S.App. D.C. 256, 307 F.2d 397 (1962):
. A further material contradiction between the oral confession and appellant’s testimony at the trial was that the former contained a statement that Taylor had taken a “swing” at Perry when he returned with the gun, while the latter asserted that Taylor was again trying to assault Miss Miles.
. “We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation. * * * ” Escobedo v. State of Illinois, 378 U.S. 478, 488-489, 84 S. Ct. 1758, 1764, 12 L.Ed.2d 977 (1964). (Footnotes omitted.)
. See Stephen, A Histoby op the Cbiminal Law of England 441 (1883); Chapee, The Blessings of Libebty 186-190 (1956).
. The panel opinion, page 815, reads:
“In light of the continuous movement between the precinct station and the scene of the shooting and since the record indicates that no opportunity for sustained interrogation of appellant was present, we conclude that the police testimony as to the oral statements by appellant was admissible under the doctrine of spontaneous admissions. * * *”
. 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); Goldsmith v. United States, 107 U.S.App.D.C. 305, 277 F.2d 335, cert. denied, sub nom. Carter et al. v. United States, 364 U.S. 863, 81 S.Ct. 106, 5 L.Ed.2d 86 (1960) ; compare Killough v. United States, 114 U.S. App.D.C. 305, 315 F.2d 241 (1962) (en banc).
. Fredricksen v. United States, 105 U.S. App.D.C. 262, 266 F.2d 463 (1959).
. See cases cited in first paragraph of text.