(dissenting).
Appellant and a co-defendant were convicted of fraudulently uttering four money orders known to have been altered, violations of 18 U.S.C. § 500. The alterations increased the face value of the money orders an aggregate of 310 dollars. Appellant was sentenced to imprisonment for twenty months to five years, service of this sentence not to begin, however, until the expiration of a ten-year sentence recently imposed upon him in Maryland for burglary.
A substantial part of the evidence adduced by the government at trial consisted of appellant’s oral and written confessions, obtained from him by two Postal Inspectors while he was in the Baltimore City Jail on the Maryland charge. When visited there by the Inspectors appellant had been in jail twenty days. The record does not show that he had counsel for the state charge; counsel for the federal charges was appointed more than seven months after the confessions. Except on the issue of sanity, appellant’s public trial was a formality.1 In all substance he was convicted at the Baltimore jail, in private, without judge, jury or counsel. See the separate concurring opinions written by Mr. Justice Douglas and Mr. Justice Stewart in Spano v. New York, 360 U.S. 315, 325-327, 79 S.Ct. 1202, 3 L.Ed.2d 1265, which I think are pertinent although in Spano the confessor was under indictment.
At the time he confessed, appellant was about twenty-four years of age and indigent. He was suffering from a mental illness known as passive aggressive personality. His case history included two psychiatric examinations while in the military service, and disclosed that his mental illness had persisted since early childhood.2 Moreover, appellant had a history of barbiturate addiction beginning when he was sixteen or seventeen.
Postal Inspectors Ohrvall and Diserod obtained the confessions. Inspector Ohrvall seems to have been the primary interviewer. He had spent thirty-five years in criminal work, had been involved in numerous cases in many states, and had studied law and accountancy. He agreed that he felt “pretty familiar with the criminal type” and said he had a great deal of experience with addicts and the “mentally deranged” as well.
When the two Inspectors went to the jail they had reason to believe and no doubt did believe that appellant had participated in the crime for which he was later indicted, 18 U.S.C. § 500. They had with them the money orders containing handwriting later identified as appellant’s. These money orders had been passed to them by the “inspectors who made the initial investigation.” The Inspectors must have known that appellant had already been identified by his picture. In its brief in this court the government says the record does not show that this identification was made before the visit of the Inspectors to the jail. The government’s own witnesses demonstrate the contrary. The only witness able to identify appellant at trial had cashed one of the altered money orders for him on April 25, 1964. This witness testified that “less than sixteen days” later he made his first identification on the basis of photographs proffered by a *292Postal Inspector.3 Inspector Ohrvall did not visit appellant until July 9, 1964. The investigation had then focused on appellant.
Even if it could be said that the Inspectors were without probable cause to arrest appellant when they opened conversation with him at the jail, they did have probable cause a moment later; for Inspector Ohrvall began his testimony at the hearing on the motion to suppress as follows:
A. I told Mr. LaShine I wanted to talk to him about money orders which have been raised and passed in Washington, D. C., and I produced the money orders.
******
Q. And you showed them to him ?
A. Yes, Sir.
Q. All right what else happened ?
A. He said: Yes, I passed them. I asked him if he had written the face of the orders or if he had just endorsed them. He stated that he had endorsed them.4
Though having this admission, the Inspectors remained with appellant for an hour or more. During that time they had appellant initial each money order, sign a written confession, and swear to it.
The confessions were objected to (1) as induced by promises to be sent to Lexington, Kentucky, for treatment of appellant’s addiction,5 (2) as involuntary on the grounds of appellant’s mental illness, and (3) as “the fruit of an illegal detainment” under the “Mallory logic.”
After the hearing outside the presence of the jury the trial judge ruled explicitly against the applicability of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. He also rejected the objections to the admissibility of the confessions as involuntary and in violation of the Mallory rule. That the Mallory objection was preserved on the record appears from the following:
[Defense Counsel]: The record will show that in September or November he was indicted for these particular offenses. The rules require that a man will be taken speedily before a magistrate and charged with the offenses that will be the subject of the indictment. This was not done and it seems to me, not on the thought of a threshold statement but on the fact that there was a detention, notwithstanding its validity for other charges, but a detention for a length of time without informing the Defendant of what the pending charges would be made against him, this alone would be, it seems to me, in the general logic of the Mallory idea, sufficient grounds to suppress the confession.
The Court: He was not being detained on these charges, was he?
[Defense Counsel] : I grant you they were for other charges but, nevertheless, it seems to me to be a logical thought that if a man has several different charges in different jurisdictions pending against him, and he thought that he through a confession escaped any charges that might be-brought against him, hadn’t heard of them again, it may change his testimony, it may change his logic, his whole approach or his attorney’s approach in another case in another jurisdiction. If my hunch is correct on this, and if this is one of the many bases why you bring a man speedily before a magistrate and charge him, then should not this logic prevail here on the question of suppressing this confession?
*293I think it clear that the objections adequately disclosed their bases in law, and under the law I think the confessions were inadmissible. I lay aside for the moment the issue of voluntariness and treat the evidence in the light of the decisions of the Supreme Court in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; Escobedo v. State of Illinois, supra; and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L. Ed.2d 1479.
Appellant had been in jail for twenty days. He was indigent. It does not appear that he had counsel, or had been advised by an impartial official, or in any other meaningful manner, of his right to counsel. If he had counsel, albeit only with respect to the Maryland charge, the confessions were inadmissible under the rationale of Massiah. If he did not have counsel, and there is no evidence of an opportunity to obtain counsel or advice with respect thereto followed by an intelligent waiver, then I would apply Escobedo in accordance with the same reasoning which led me, prior to Miranda, to apply Escobedo in my dissenting opinion in Jackson v. United States, 119 U.S. App.D.C. 100, 105, 337 F.2d 136, 141, cert, denied, 380 U.S. 935, 85 S.Ct. 944, 13 L.Ed.2d 822. Moreover, the Mallory rule, though fashioned in other circumstances, should exclude the confessions at the federal trial. The Inspectors had probable cause to arrest appellant on the federal charges, if not when the interrogation began then as soon as appellant acknowledged that he had passed the money orders.6 Though not formally arrested on the federal charges, the “logic” of the Mallory rule applies because he was as if arrested. He was not at liberty. He was in compulsory custody. Where the issue as here is the admissibility of a confession Rule 5 of the Federal Rules of Criminal Procedure should be construed in the circumstances to require that appellant should have been taken before a magistrate without unnecessary delay if it were practicable to take him before a magistrate. If it were not practicable then a confession elicited by police interrogations comes within the logic of the Mallory rule. The fact that appellant was confined by Maryland on a Maryland charge well might have rendered impracticable a hearing before a magistrate, but this conferred no rights on the government to use in evidence confessions which would have been inadmissible were a hearing before a magistrate practicable. Insofar as the questioned evidence is concerned, appellant lost no right under federal law by reason of his detention by Maryland in a cell in a city jail.
Appellant was entitled to counsel. He could not have intelligently waived counsel, for he was not even told he had the right to have counsel appointed by the court. His confessions are thus governed not only by the logic of the Mallory rule, but also by the logic of the Massiah and Escobedo rules. It is of course possible to draw distinctions, but some of the factual differences favor appellant, particularly the coercive circumstances in which the confessions were obtained. Were we unable strictly to apply Mallory, Massiah, or Escobedo, the principles underlying those decisions, in the factual situation of appellant’s case, should lead to the exclusion of the confessions under our supervisory power over the administration of criminal justice in this jurisdiction.
It cannot in reason be denied that the situation was coercive. Irrespective of Mallory, Massiah, and Escobedo, therefore, the confessions should have been excluded as involuntary based on appel*294lant’s Fifth Amendment protection against compelled self-incrimination.7
In light of the evolution of the law pertaining to the inadmissibility of confessions obtained as a result of police interrogation, a simple basis for disapproval of their use in this trial is the decision of the Supreme Court in Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694.8 Appellant’s case clearly falls within the rule there laid down. And while the Supreme Court has not required Miranda to be applied to a trial which antedated it, the Court has not prohibited such application. Johnson v. State of New Jersey, 384 U.S. 719, 733, 86 S.Ct. 1772, 16 L.Ed.2d 882. It has been my view that our court should not apply Miranda to convictions already affirmed on direct appeal and later made the subject of collateral attack. The present case is not of that kind, for it was pending argument on direct appeal when Miranda was decided. I am not ready to hold that in every such situation Miranda should govern, but here the circumstances are so compelling that I would not withhold from this appellant the benefit of the principles established by the Supreme Court while his case was pending on direct appeal in this court.
Section 500 of Title 18, U.S.C., defining the crime of which appellant is accused, is a federal statute of general application, not a portion of the Code of the District of Columbia. The permission granted by the Supreme Court in Johnson to apply or not to apply Miranda to cases tried before June 13, 1966, was accorded the state courts in terms not necessarily applicable to federal courts enforcing federal criminal statutes. The latitude granted state courts found justification in the history of the problem peculiar to the states and in cases applying constitutional protection to the states.9
One cannot escape the conviction that the confessions made in the jail cell by appellant were compelled self-incrimination:
[W]e hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege [against self incrimination] we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. ******
In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will *295be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent — the person most often subjected to interrogation — the knowledge that he too has a right to have counsel present.42 As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it.
Miranda v. State of Arizona, supra at 471, 473, 86 S.Ct. at 1626, 1627 (footnote omitted).
After he was unsuccessful in obtaining exclusion of the confessions, counsel defended solely on the ground of insanity, as pointed out in the majority opinion. This can only be attributed to the fact that the court ruled the confessions admissible. Accordingly, if that ruling were error, I would not hold that appellant had waived his objections to the confessions. After the ruling counsel no doubt thought he could better help his client by relying upon the claim of insanity than by dwelling on the confessions themselves. Counsel’s selection of this alternative does not cure the situation which caused it — the admission of statements violative of the rules of evidence.
It is not unlikely appellant could be convicted on admissible evidence of his handwriting, identification, and perhaps other evidence, unless acquitted by reason of insanity. But such outcome should await a trial in open court, free from confessions obtained as here in the Baltimore City Jail where in all substance appellant’s actual trial took place.
I respectfully dissent.
. During its deliberation the jury requested eight government exhibits. Four were money orders which bore on the case of either appellant or his co-defendant; three related only to the case of the co-defendant. One exhibit was the written confession, which related only to appellant. The confession was not delivered to the jury, but it was read to them once again.
. Pursuant to court order appellant was confined to St. Elizabeths Hospital from March 30 to June 2, 1965, for a mental examination. The diagnosis that appellant suffered from passive aggressive personality was the consensus of the examining staff which consisted of Dr. Owens and Dr. Economon, both psychiatrists, and Dr. Borriello, a psychologist. Dr. Owens not only testified that appellant was mentally ill when he confessed, but also that a drug addict, even when not in a state of withdrawal, “would be most susceptible to inducements or promises of anything, that is, to help himself * * *_»
. This Inspector is not otherwise identified in the record.
. In response to a leading question from the prosecutor, the Inspector varied his account of what transpired during the opening moments of his confrontation of appellant. This second account was given shortly after the above quoted testimony at the hearing on the motion to suppress and was substantially repeated before the jury. See footnote 3 of the majority opinion for the account given in the presence of the jury.
. The Inspector said, “He [appellant] mentioned something about having used narcotics.” See also footnote 7 of the majority opinion for part of appellant’s testimony in this regard.
. If this approach allows the initial oral confession to be admitted, excluding only the subsequent written confession, the admission of the latter alone would require a new trial. Haynes v. Washington, 373 U.S. 503, 519, 83 S.Ct. 1336, 10 L.Ed.2d 513; Lynumn v. State of Illinois, 372 U.S. 528, 537, 83 S.Ct. 917, 9 L.Ed.2d 922; Spano v. New York, 360 U.S. 315, 324, 79 S.Ct. 1203, 3 L.Ed.2d 1265; Payne v. State of Arkansas, 356 U.S. 560, 567-568, 78 S.Ct. 844, 2 L.Ed.2d 975; Cunningham v. United States, 119 U.S.App.D.C. 262, 340 F.2d 787; Watson v. United States, 98 U.S.App.D.C. 221, 234 F.2d 42, 48.
. In Johnson v. State of New Jersey, 384 U.S. 719, 731, 86 S.Ct. 1772, 1780, 16 L.Ed.2d 882, the Court pointed out that its past decisions “treated the failure to warn accused persons of their rights, or the failure to grant them access to outside assistance, as factors tending to prove the involuntariness of the resulting confessions. See Haynes v. State of Washington, supra; Spano v. New York, supra."
. See particularly Westover v. United States, 384 U.S. 494, 86 S.Ct. 1638, 16 U.Ed.2d 694, which is one of the cases decided with Miranda.
. In Johnson the Court expressed concern for the disruption of the administration of criminal law and the necessary retrials, noting that law enforcement agencies had “fairly relied” on prior cases of the Court which dealt with state prosecutions. “Prior to Escobedo and Miranda, few States were under any enforced compulsion on account of local law to grant requests for the assistance of counsel or to advise accused persons of their privilege against self-incrimination.” 384 U.S. at 731, 86 S.Ct. at 1780. Such has not been the case in the federal system. Prior to Escobedo its law enforcement agencies were subject to Rule 5, Fed.R.Crim.P., McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, Mallory and Massiah.