(concurring in part and dissenting in part).
As the Government’s case was being developed and as it turned out, about 25 minutes elapsed between the searching of this appellant and his being booked at the precinct. His trial counsel stipulated that the appellant was booked at 10:45 P.M. Brought from the roof into the laundry plant, the appellant stood in front of a Coke machine which had been broken open. The coin box was on the floor. The appellant was searched. In his right rear pocket were 8 quarters, 87 dimes, 14 nickels and 2 one dollar bills. The prosecutor asked the officer what conversation he had with the appellant in the circumstances just described. Such was the background for the sequence of questions and answers as they appear in footnote 1 of Judge McGowan’s opinion, in the course of which the trial judge ruled admissible the appellant’s oral statement that he had broken into the Coke machine.
Defense counsel contended that the oral admission wás “inadmissible and it is incompetent.” In November 1963, just as did the trial judge, I would have ruled against him on both points. Counsel stated “It is uncorroborated,” but the record is otherwise. “It is not threshold,” he said, and again I disagree. Not until the appellant was brought from the roof and down into the laundry could the officers have known what had hap*770pened. As the trial judge observed, “It certainly is not in violation of the Mallory rule.”
Our question then arises in the context that defense counsel went on to state that the oral admission was the result “of a course of treatment by the police which amounts to coercion, and not of any voluntary nature whatsoever.” In November 1963, as did the trial judge, I would have regarded such purported grounds of objection to be utterly frivolous.
There had not been the slightest suggestion of “coercion.” There was then no evidence that the appellant’s admissions were other than voluntary. Defense counsel did not ask that the jury be excused and that a hearing be held. There was no proffer of evidence that the police had acted improperly in any respect whatever.
Even so, I reluctantly conclude that we are bound to remand for a hearing on the issue of voluntariness. In Pea v. United States,1 2the trial judge in the absence of the jury had conducted a hearing touching upon the circumstances involving the admissions by the appellant and had received them, subject to corroboration. The Supreme Court vacated our judgment8 and remanded the case for further proceedings in conformity with its opinion in Jackson v. Denno.3
In the latter case the majority wrote that an accused is entitled
“to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession.” 4
Again the majority stated in Jackson that
“A defendant objecting to the admission of a confession is entitled to a fair hearing in which both the underlying factual issues and the volun-tariness of his confession are actually and reliably determined.”5
Further, the majority pronounced, the reliability of a confession has nothing to do with its voluntariness and
“proof that a defendant committed the act with which he is charged and to which he has confessed is not to be considered when deciding whether a defendant’s will has been overborne.” 6
Under the circumstances and since there had been no such hearing here, a remand is in order that there may be a hearing and determination on the issue of voluntariness whether or not the issue had been raised by an objection patently frivolous at the time it was made, as this one was. So I join in the remand solely because of Jackson v. Denno, supra.
With the greatest of deference, I do not agree that it was open to us to consider on this record whether or not “the court committed reversible error in permitting this appellant to be asked about his prior conviction.” The Supreme Court in Fitzpatrick v. United States 7 unanimously concluded:
“Where an accused party waives his constitutional privilege of silence, takes the stand in his own behalf and makes his own statement, it is clear that the prosecution has a right to cross-examine upon such statement with the same latitude as would be exercised in the case of an ordinary witness, as to the circum*771stances connecting him with the alleged crime. * * * The witness having sworn to an alibi, it was perfectly competent for the government to cross-examine him * *
In Raffel v. United States the Court reiterated that when an accused takes the stand in his own behalf, he does so as does any other witness. His waiver of Fifth Amendment rights is not partial the court said, adding, “having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing.” 8
So it is that under our statute,9 no person is deemed incompetent to testify by reason of his having been convicted of crime, and Congress has expressly provided that the fact of such conviction “may be given in evidence to affect his credit as a witness, either upon the cross examination of the witness or by evidence aliunde; and the party cross examining him shall not be concluded by his answers as to such matters.” (Emphasis supplied.)10
When our statute says that the “fact” of previous conviction “may be given in evidence,” to me it is speaking of an option open to “the party cross examining” the witness. I think my colleague has misconstrued the language and its objective. That language tells the trier the fact of conviction is evidence, and it is to be received. Of course, a party is not bound thus to impeach a witness. That is why the word “shall” is not used.
If the dictum in Judge McGowan’s opinion is intended to be read as meaning that the trial judge — and not the cross examining party — has the option of deciding whether or not the fact of a prior conviction may be used for purposes of impeachment, I disagree. If the discussion is meant to imply that a trial judge may in his discretion exclude such competent evidence, I disagree.
My comment, in turn, does not reject the principle that the trial judge may exercise a broad discretion with reference to cross examination in certain impeachment situations.11 And certainly since the judge is more than a mere moderator,12 he may at a bench conference, for instance, advise with counsel as to the desirability of pursuing cross examination as to — and if not satisfied, he may exclude — some categories of subject matter which may be technically competent, yet only remotely relevant to an immediate issue.
Here the trial judge conducted extensive inquiry into the status of the appellant at the time of his prior conviction. He heard argument on the effect of the earlier waiver by the Juvenile Court. He satisfied himself that this case was not within Thomas v. United States13 where this court had barred as a basis for impeachment, proof of an adverse determination in the Juvenile Court in its proceeding against a juvenile. Thereupon *772he correctly distinguished that situation from the circumstances here since this appellant had been tried14 in the District Court after waiver and had been convicted as an adult. The fact of that conviction under our Code15 accordingly was admissible as “evidence to affect the credit” of the appellant as a witness.
I deem further discussion unnecessary.
. 116 U.S.App.D.C. 410, 324 F.2d 442 (1963).
. Pea v. United States, 378 U.S. 571, 84 S.Ct. 1929, 12 L.Ed.2d 1040 (1964). If the Supreme Court deemed a remand in order in the Pea case, it certainly is proper here.
. 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
. Id. at 377, 84 S.Ct. at 1781.
. Id. at 380, 84 S.Ct. at 1783.
. Id. at 385, 84 S.Ct. at 1785.
. 178 U.S. 304, 315, 20 S.Ct. 944, 948, 44 L.Ed. 1078 (1900).
. 271 U.S. 494, 497, 46 S.Ct. 566, 568, 70 L.Ed. 1054 (1926); Johnson v. United States, 318 U.S. 189, 195, 63 S.Ct. 549, 87 L.Ed. 704 (1943); and see Brown v. United States, 356 U.S. 148, 154-155, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958).
. We refer to D.C.Code § 14-305 (1961), as worded when this case was tried; compare D.C.Code § 14-305 (Supp. IV, 1965).
. This court has expressly held that the word “crime” as used in the statute includes both felonies and misdemeanors. Indeed the trial judge is foreclosed by the statute from inquiry into the nature of the “crime” or its relevance where the credibility of the witness is sought to be impeached by proof of the conviction. Bostic v. United States, 68 App.D.C. 167, 94 F.2d 636 (1937), cert. denied, 303 U.S. 635, 58 S.Ct. 523, 82 L.Ed. 1095 (1938); and see Campbell v. United States, 85 U.S.App.D.C. 133, 176 F.2d 45 (1949).
. See, e. g., Grunewald v. United States, 353 U.S. 391, 418-424, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957); cf. Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954).
. Cf. Herron v. Southern Pacific Co., 283 U.S. 91, 95, 51 S.Ct. 383, 75 L.Ed. 857 (1931).
. 74 App.D.C. 167, 121 F.2d 905 (1941).
. Pee v. United States, 107 U.S.App.D.C. 47, 51-52, 274 F.2d 556, 560-561 (1959).
. See note 9, supra, cited, to text.