The opinion
O’CONNELL, J.,
dissenting.
Defendant was under arrest when he was brought to the sheriff’s office on the night of August 8, 1961. He was not taken before a magistrate until 12:55 a. m. on August 10th. ORS 133.550 provides that “[t]he defendant shall in all cases be taken before the magistrate without delay.” The police disregarded this mandate. Their only purpose in doing so was to interrogate the accused. That is not a legal excuse for post *365 poning the prompt presentment of an arrested person before a magistrate.
Under these circumstances, even assuming that defendant made the confession voluntarily, it was the product of an unlawful detention. I am of the opinion that we should apply the principles supporting the so-called McNabb-Mallory rule ① and hold that any confession obtained in the course of violating ORS 133.550 is inadmissible. ②
The confession should, therefore, be rejected and the cause remanded for a new trial.
Sloan, J., joins in this dissent.
McNabb v. United States, 318 US 332 , 63 S Ct 608 , 87 L Ed 819 (1943); Upshaw v. United States, 335 US 410 , 69 S Ct 170 , 93 L Ed 100 (1948); Mallory v. United States, 354 US 449 , 77 S Ct 1356 , 1 L Ed2d 1479 (1957).
See, People v. Hamilton, 359 Mich 410 , 102 NW2d 738 (1960), as modified by People v. Hannum, 362 Mich 660 , 107 NW2d 894 (1961) and People v. Harper, 365 Mich 494 , 113 NW2d 808 (1962); Bader, Coerced Confessions and the Due Process Clause, 15 Brooklyn L Rev 51, 70-71 (1948); Weisberg, Police Power and Individual Freedom—Police Interrogation of Arrested Persons 153, 180-81 (Sowle ed 1962). See also, Hogan & Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo L J 1, 30-33 (1958); Leibowitz, Safeguards in the Law of Interrogation and Confessions, 52 NW U L Rev 86 (1957).