if so, whether under the particular circumstances there was any unnecessary delay in taking the defendants before a committing magistrate.
Detective Xander testified that, after being informed that the defendants could be released to him without the necessity of obtaining warrants, he obtained their custody upon signing of receipts, whereupon he placed the defendants under arrest. This was after all three had been interviewed and after their incriminating admissions. During the questioning, Detective Xander, having no jurisdiction on the Air Base, had no custody or control of the defendants. He did not even know where they went when they left the room.
Defense counsel contend, however, that the detention of the defendants in the Provost Marshal's office during the police interviews amounted to an arrest -- by whom, it is not clear. Certainly, the civilian police could make no arrest on the Base without the permission of the military authorities. Major Hebert, the Provost Marshal, testified that he made no arrest and authorized none by the air police, but merely ordered the defendants to come to his administrative office so that the local police could talk with them. Sergeant Adams, the air policeman who brought the defendants there, did not place them under arrest, but merely escorted them to the Provost Marshal under a military order. Although the defendants did not feel free to refuse to accompany Sergeant Adams or free to absent themselves from the interview, it was by virtue of a military order rather than any arrest.
Under these facts, the court finds that the three defendants were not under military arrest or custody other than such control as flows from regular military service, nor were they under arrest or in custody of the civilian authorities until -- and only when -- they were officially turned over to the police by the military authorities. As stated before, there has not been admitted in evidence in this case any admission or confession made by any of the defendants after he was released to the police.
Even assuming the defendants to have been in custody or under arrest by the military at the time they were interviewed by Detective Xander in the Provost Marshal's office, under the facts peculiar to this case, I find there had been no unnecessary delay in taking them before a committing magistrate at the time of defendants' admissions or confessions in that office. Although the police had probable cause to make an arrest outside the Base, the police interview of the defendants in the Provost Marshal's office clearly was warranted for the purpose of securing their release by the military authorities. There was no protracted questioning of any of the defendants before his admission of guilt. It was only fair that they be confronted with the information previously received by F.B.I. Special Agent Buscher and the police, to give them an opportunity to clear themselves before being turned over to the police. Instead, within a few minutes, the defendants admitted their complicity in the offense.
Inasmuch as the police had probable cause upon which to arrest the defendants before they talked with them, the questioning in the Provost Marshal's office was clearly not 'an interrogating process * * * in order to determine whom they should charge before a committing magistrate on 'probable cause," within the rule of the Mallory case, supra.
It is therefore immaterial whether there was any unnecessary delay in arraignment after the arrest by Detective Xander, since it would not affect the admissibility of voluntary confessions made prior to the arrest.
Insofar as Article 31 of the Uniform Code of Military Justice
is concerned, it bears no application to the admissibility of the confessions in this trial. Even if it be assumed that, pursuant to subparagraph (b) thereof, the defendants should have been advised by the military authorities of their right to remain silent and the possible use against them of any admissions or confessions they might make, failure so to advise them, under subparagraph (d), would make their confessions inadmissible only in a court martial, not in a criminal trial in a civil court, where the admissibility of confessions is governed by a different body of law.
I therefore hold the evidence of the confessions and admissions by each of the three defendants in the Provost Marshal's office to be admissible.
Upon the merits, I find the defendants, Simpson, Chambers, and Smyth, guilty of robbery as charged. Although the defendants Chambers and Smyth did not actually assault or take property from the complainant's person, by their own admissions they aided and abetted Landini and Simpson therein, together with them planning the robbery and participating in the offense as lookouts.
This determination is made exclusive of any testimony by the defendants on the witness stand and any evidence of admissions or confessions after arrest or arraignment.
The case will be referred to the Probation Officer for presentence reports.