(concurring) :
I concur in Judge Burger’s opinion. I wish to point up a bit more sharply additional reasons for my rejection of the theory of the dissenting opinion. Perhaps mine is an old-fashioned approach, but I think that when we cite Supreme Court precedents, we should look — not to dictum — but to precisely what the Court has held.
For example, in Escobedo v. Illinois, 378 U.S. 478, 490-491, 84 S.Ct. 1758, 1765, 12 L.Ed.2d 977 (1964), the Court announced that an accused has been denied his Sixth Amendment rights under the following circumstances:
“We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U.S. [335] at 342 [83 S.Ct. 792, at 795, 9 L.Ed.2d 799], and that no *667statement elicited by the police during the interrogation may be used against him at a criminal trial.” (Emphasis supplied.)
In that same Escobedo case, a dissent was written by Mr. Justice Stewart. He explained precisely what had been held in Massiah v. United States, 877 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). He was the author of the Massiah opinion. It fairly may be assumed that he knew exactly what he had been trying to say. So, he pointed out the following:
“Massiah v. United States, 377 U.S. 201, [84 S.Ct. 1199, 12 L.Ed.2d 246] is not in point here. In that case a federal grand jury had indicted Massiah. He had retained a lawyer and entered a formal plea of not guilty. Under our system of federal justice an indictment and arraignment are followed by a trial, at which the Sixth Amendment guarantees the defendant the assistance of counsel. But Massiah was released on bail, and thereafter agents of the Federal Government deliberately elicited incriminating statements from him in the absence of his lawyer. We held that the use of these statements against him at his trial denied him the basic protections of the Sixth Amendment guarantee.” (Emphasis supplied.) (Footnote omitted.) Escobedo v. Illinois, 378 U.S. 478, 493, 84 S.Ct. 1758, 1766 (1964).
So it was that in Jackson v. United States, 119 U.S.App.D.C. 100, 337 F.2d 136 (1964), we noted that neither Escobedo nor Massiah can be read as barring use of Jackson’s confession. We very carefully framed the issue as the majority viewed it contrasted against the position taken by our dissenting colleague. The majority said:
“Many, learned in the law, deeply believe that no accused should be convicted out of his own mouth. But the Supreme Court has never announced any such proposition— not even where the accused had no attorney and had received no Rule 5 ‘judicial caution.’ United States v. Mitchell, 322 U.S. 65, 70, 64 S.Ct. 896, 88 L.Ed. 1140 (1944). We said as much ourselves only a month ago in Ramey v. United States, 118 U.S. App.D.C. 355, 336 F.2d 743, cert. denied [379 U.S. 840], 85 S.Ct. 79, [13 L.Ed.2d 47] (1964), and see United States v. Carignan, 342 U.S. 36, 72 S.Ct. 97, 96 L.Ed. 48 (1951) where Rule 5 advice had been imparted. If there were a rule that a confession may not be received if made by an accused without counsel, that would be the end of this case — and of scores like it.” (Emphasis in the original.) 119 U.S.App.D.C. at 104, 337 F.2d at 140.
The Supreme Court refused to take that case. Certiorari was denied, 380 U.S. 935, 85 S.Ct. 944, 13 L.Ed.2d 822 (1965).
Here, as Judge Burger has pointed out, Cephus himself sent for the officers. He wanted to make a “deal.” The record shows, and not the least effectively because of his own discredited testimony, that he was a totally wary individual who sought to exculpate himself. He had received his Rule 5 “judicial caution.” His statements to the officers were received by way of impeachment only after he had testified that he had not consented to see the police and that he had no recollection of “requesting to talk to the officers.” Even then, the trial judge excused the jury and held a hearing in order to ascertain the circumstances under which the inculpatory admissions had occurred. I think the trial judge did not err.
When an accused in a criminal case takes the stand and
“testifies in his own defense his credibility may be impeached and his testimony assailed like that of any other witness, and the breadth of his waiver is determined by the scope of relevant cross-examination. ‘[H]e has no right to set forth to the jury all the facts which tend in his favor without laying himself *668open to a cross-examination upon those facts.’ Fitzpatrick v. United States, 178 U.S. 304, 315 [20 S.Ct. 944, 949, 44 L.Ed. 1078]; and see Reagan v. United States, 157 U.S. 301, 304-305 [15 S.Ct. 610, 611, 39 L.Ed. 709].”1
The courts do not justify letting a “defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility.” Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503 (1954).
This appellant was in lawful detention.2 He was properly subject to cross-examination.3 I am not persuaded by our dissenting colleague’s reliance upon Johnson and Stewart v. United States,4 first, in that it is distinguishable on its facts, but more importantly, because in my view, the case was wrongly decided. Except for the technicality as to sentence, I would affirm the conviction.
. Brown v. United States, 356 U.S. 148, 154-155, 78 S.Ct. 622, 626, 2 L.Ed.2d 589 (1958).
. Cf. Bailey v. United States, 117 U.S.App. D.C. 241, 328 F.2d 542, cert. denied, 377 U.S. 972, 84 S.Ct. 1655, 12 L.Ed.2d 741 (1964).
. Radio Cab v. Houser, 76 U.S.App.D.C. 35, 37, 128 F.2d 604, 606 (1942); Walder v. United States, text, supra; Raffel v. United States, 271 U.S. 494, 497, 46 S.Ct. 566, 70 L.Ed. 1054 (1926); Long v. United States, 119 U.S.App.D.C. 209, 338 F.2d 549 (1964).
. 120 U.S.App.D.C. 69, 344 F.2d 163 (1964), Senior Circuit Judge Wilbur K. Miller dissenting.