the scene of the crime was that of the defendant, the officers arrested the defendant Trilling on good probable cause. Defendant was arrested during the early morning hours when no magistrate was available. Although the defendant denied his complicity in the offense to the arresting officers, he readily admitted the housebreaking shortly after he had been booked at Headquarters and within a few minutes after he was first questioned in the Safe Squad, upon being told of the fingerprints. There was no written confession of the Johnson & Wimsatt offense, although, as stated before, the defendant orally gave additional details of this housebreaking about 2:00 p.m. and about 9:00 p.m. after his commitment, went with police officers to the park where a screw driver used in that entry was recovered.
The evidence upon which the defendant was arrested, without any admission by him, was obviously sufficient upon which to base a charge and even conviction. The defendant was arrested during the early morning hours and at the time of his oral confession no magistrate was available. True, as one of the officers admitted in his testimony, the defendant might have been taken before a committing magistrate at the Municipal Court at about 9:30 a.m. on the Johnson & Wimsatt housebreaking alone. However, by that time the defendant had been transferred to the Homicide Squad for questioning with reference to a murder, as well as lie detector and blood tests. Meanwhile defendant was questioned concerning twenty-two other housebreaking or safecracking offenses bearing some similarity in location or method to the admitted housebreaking. Inasmuch as this court is without any information as to the probable cause upon which defendant was questioned with reference to the homicide, it cannot conclude whether or not it was unreasonable for the police to question defendant thereon and to administer the lie detector and blood tests which cleared him. For the same reason the court is unable to determine whether the delay for questioning as to the twenty-two safecrackings was unreasonable. Nor is it necessary to do so, since his questioning as to other offenses is irrelevant to Count 3 of Criminal No. 965-55.
Although it might be contended that the police should have charged the defendant in the Johnson & Wimsatt case alone as soon as a magistrate became available, even if the subsequent detention for entirely unrelated purposes should be held illegal so as to bar later confessions of other offenses, such illegal detention for unrelated purposes could not affect the admissibility of the earlier oral confession, which was not induced or made during illegal detention, but on the contrary was made during a period of reasonable delay after a few minutes' conversation in the Safe Squad, upon the defendant's being confronted with the finding of his fingerprints at the scene of the crime.
As to the refusal of the court to grant severance, this was a proper exercise of the court's discretion. Joinder of the offenses in one indictment was permissible under Rule 8(a), Federal Rules of Criminal Procedure, 18 U.S.C.A. No motion for severance was made until after the trial had begun and the prosecutor had completed his preliminary statement of the case on voir dire. There was no showing of such prejudice as to require a severance of the two offenses for separate trials.
As to the contention of improper argument by government counsel concerning the confession, this relates only to the appeal from Criminal No. 967-55, which was tried before another judge of this Court.
Inasmuch as the court finds that there is not such probability of reversal of the conviction under Count 3 of Criminal No. 965-55 as to warrant a belief that defendant may be prejudiced by denial of bond pending the Court of Appeals' determination of the appeal in that case, the defendant's application for bond pending appeal will be denied.