“Thе aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence whether true or false.”
Lisenba
v.
California,
I hold that admission in evidence of defendant Hamilton’s confession deprived him of process due by our Constitution (1908) and criminal code * §, to say nothing of the process that is due by supreme law.
*412 Maurice ■ Hamilton and Victoria Hirmiz were charged in the first degree with having murdered Victoria’s husband, Aziz Hirmiz. They were tried together in Detroit recorder’s court. The jury found defendant Hamilton guilty of murder as charged and defendant Hirmiz “not guilty by reason of insanity.” Defendant Hamilton was sentenced to life imprisonment “without favorable recommendation.” He appeals to this Court upon leave granted.
Hamilton was born in and is a citizen of Iraq. He lived there until September of 1955, when he came to Detroit on authority of a student visa for the purpose of “learning to bе a mechanic.” He could not speak English * and had learned but few English words in the short time between arrival in Detroit and indictment there. Aged 19 at the time, he had never previously been “involved with the law.”
Mr. and Mrs. Hirmiz had been acquainted with Hamilton in Iraq. Mr. Hirmiz had been a neighbor, there, of Hamilton’s family. Mrs. Hirmiz had been a friend of Hamilton’s mоther in Baghdad.
The homicide occurred during the night of February 9-10, 1956, in the Detroit apartment of Mr. and Mrs. Hirmiz. Mr. Hirmiz was found knifed to death. The police, called during the morning of February 10th, found his body in a bedroom of the Hirmiz apartment. They also found Mrs. Hirmiz in an adjacent room with her hands tied behind her and her feet tied to a table. She insisted thаt “a colored man” had entered the apartment and, after having killed her husband, that he tied her up in the manner described. Her story changed later.
*413 Shortly after arrival of the police Hamilton and Mrs. Hirmiz’ brother, Azzawi Haisha, came to the apartment. The 2 defendants thereupon were arrested and taken to police headquarters for interrogation. There they were detained, incommunicado excepting as presently indicated, until each confessed. Mrs. Hirmiz’ confession was obtained by the police Saturday morning, February 11th. Implicating Hamilton as wielder of the knife, she said he was to be paid — or had been paid — by her for the homicide and that she had instructed him to tie her up for the purpose of supporting her first story. The police thereupon employed her confession to obtain Hamilton’s confession. He did not yield until Monday. His confession was recorded about 10 in the evening of that day, February 13th.
One Jamil Jalaba, friend of Mr. and Mrs. Hirmiz and of Hamilton, communicated the content of Mrs. Hirmiz’ confession to Hamilton. It is apparent from the record that Jalaba, doubtless in good faith,
*
aided the police in bringing about Hamilton’s confession by talking repeatedly with Hamilton alone and in the presencе of officers Areeda and Clinton, on 1 occasion for 2 hours. (The situation in such regard is much like that shown in
Spano
v.
New York,
From this point forward the record discloses much dispute and uncertainty. If Hamilton is believed, he was mistreated scandalously by the officers between the Friday morning arrest and the time of the Monday confessiоn. The officers testified to the contrary, and at detailed length. * We need not, however, evaluate these typically disputed versions of the interrogation period, the following facts having been clearly established.
From the time of arrest February 10th, and continuously until his confession was obtained and recorded February 13th, defendant Hamilton was interrogated periodically by police officers — without pretense of effort on their part to comply with quoted section 13 of the criminal code — for the purpose of obtaining from him a confession of guilt. Even when Mrs. Hirmiz’ confession was obtained the pоlice did not comply with the requirements of said sections 13 and 26 of the code. Hamilton was not arraigned, 'or taken before a magistrate, until Tuesday morning, February 14th. During the 50-odd hour period between the 2 confessions an attorney sought to see Hamilton professionally. The attorney was refused accеss, not once but several times, having been sent first to one officer and then to others on various floors *415 of the headquarters building. * He finally gave up. The only excuse given by the State for such refusal of access is one of suggestion that the attorney was soliciting business; that the officers had a right to find out, as a condition of access as sought, the nature of the attorney’s retainer and identity of the person who paid him and arranged for his services, and that the attorney was unable to satisfy the officers that he did represent Hamilton or had been engaged properly in Hamilton’s behalf. And the principal excuse for failure to сomply with requirements of the 2 quoted sections of the code is that “he could not have been arraigned Saturday afternoon, or Sunday, or on Monday, February 13th, a holiday.” No testimony supports this last representation. Neither does the law.
Thus we face a recurrent question of due process of lаw; whether in the presented circumstances Hamilton’s confession of guilt — of first degree murder — ■ was shown by the prosecution as having been voluntary and so receivable in evidence. I hold it was-not, and refer particularly to said sections 13 and 26 in conjunction with the reasoning of
Mallory
v.
United States,
Hamilton’s continued detention was unwarranted and so unlawful under these sections. It was unlawful because the delay was unnecessary, and unlawful because its manifest purpose was that of “sweating” a confession after the officers were fully enabled to complain and arraign according to the requirements of said section 26. His unjustifiably continued detention, coupled as it was with undisputed proof that counsel engaged for him was, during such detention, refused even limited conference, amounted to a denial .of due process. Said sections 13 and 26, and Rule 5(a) of the Federal rulеs of criminal procedure , are quite alike and equally mandatory. Each requires that the person arrested be taken “without unnecessary delay” before a judicial officer for the purposes of complaint and proceedings subsequent thereto.
This does not mean that an arrested рerson cannot be “booked” and questioned for such time of “brief delay” as presented circumstances fairly require in order to determine the immediate question of release or complaint (Mallory,
supra,
at pages 454,
*417
455 and
Cicenia
v.
LaGay,
Here the delay (from and after, at least, the time of Mrs. Hirmiz’ confession) was “unnecessary” as a matter of law. It admits of no defense on account of the claimed intervention of the half and whole holidays of Saturday, Sunday and Monday. Hamilton should have been taken before a magistrate no later than Saturday afternoon, immediately following the confession of his codefendant. And it will not do so say or infer that the magisterial courts of Wayne county were closed and remained so until the following Tuesday. Magistrates of Michigan are, for the purposes of said sections 13 and 26, on legal duty at all times; Sunday, holidays or no. See
Linnen
v.
Banfield,
This construction of our rules of criminal procedure will bring them to necessitous concord with corresponding features of Federal Rule 5(a). Too, it will mean that constitutional due process means the same thing in Michigan, to an arrested person, whether he is charged or to be charged with violation of State or Federal law. We have our own guarantee of due process. * Lot us attend its enforcement.
Admittedly, some of these conclusions collide with the “question-of-fact” doctrines found in cаses like
Mooradian
v.
Davis,
*419 Here, as in Cicenia, supra * , a feeling of “strong distaste” generates from the protracted detention in violation of law of this youthful — and ill if not terrified — subject of another country; one whose comprehension of English words and of American processes of justice — including the consequences of such proсesses — must have been substantially nil, much as if he were shown as being of loiv or uneducated mentality; meanwhile denying access of counsel to him, all for the record-evident purpose of extracting a confession of guilt of murder in the first degree. As in McNabb, supra, we can and should deal with such a situation prospectively under our supervisory powers, guarding thus against more actual or inferential judicial sanction of procedures which are violative either of section 13 or section 26. At the same time we can and should assure to this accused person the process that is due him.
My conclusion upon this record wаs announced, in the preamble above. The trial judge erred in receiving, over objection, defendant Hamilton’s confession of guilt. On that account I would reverse the judgment of the trial court and order that Hamilton be tried anew.
Notes
The Constitutional refеrence is to article 2, § 16. The statutory-references read as follows:
“A peaee officer who has arrested a person without a warrant must without unnecessary delay, take the person arrested before the most convenient magistrate of the county in which the offense was committed, and must make before the magistrate a complaint, stating the offense for which the person was arrested.” Section 13, chapter 4, code of criminal procedure (CL 1948, § 764.13 [Stat Ann 1954 Eev § 28.872]).
“Every person charged with a felony shall, without unnecessary delay after his arrest, be taken before a magistrate or other judicial officer and, after being informed as to his rights, shall be given an opportunity publicly to make any statement and answer any questions regarding the charge that he may desire to answer.” Section 26, chapter 4, code of criminal procedure (CL 1948, § 764.26 [Stat Ann 1954 Eev § 28.885]).
The prosecuting attorney advises that “Neither (referring to both .defendants) spoke English, and though both spoke Arabic, the native tongue of each was Chaldean, a dialect used in Iraq.”
The prosecuting attorney, characterizing Jalaba’s testimony, tells us:
“It is readily apparent from Jalaba’s testimony that he was eager to assist Hamilton, and went tо police headquarters to see appellant after talking to a lawyer and learning that the latter would not act without authority from Hamilton’s father because appellant was a minor.”
Later in the day Jalaba talked by long distance with someone in Baghdad. It is not clear whether the person talked with was or was not one of Hamilton’s parents.
Hamilton’s appendix had been removed some 10 days prior to the date of the homicide. Whether on account of opening of the surgical Incision, as Hamilton claimed in his testimony, or whether he "went into a convulsion” as testified by one of the officers, he was hospitalized for several hours — by order of the police — during the Sunday of his detention.
Tlie attorney testified:
“Q. Then it was 4 or 4-1/2 hours you spent chasing around police headquarters trying to see Maurice Hamilton, is that correct?
“A. That is correct.”
“We hold that this case falls squarely within the
McNabb
ruling
[McNabb
v.
United States,
“The duty enjoined upon arresting оfficers to arraign 'without unnecessary delay’ indicates that the command does not call for mechanical or automatic obedience. Circumstances may- justify a brief delay between arrest and arraignment, as for instance, where the story volunteered by the accused is susceptible of quick verification through third parties. But the delay must not be of a nature to give opportunity for the extraction of a confession.” Mallory, supra, p 455).
“No person shall he compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without •due process of law.” (Const 1908, art 2, § 16).
“We share the strong distaste expressed by the 2 lower courts over the episode disclosed by this record.
Cf. Stroble
v.
California,