Solfisburg delivered the opinion of the court:
John Holmes, Jr. and Andrew Harper were jointly indicted for the murder of Jake Allen. They were tried by a *400jury, found guilty, and sentenced to death. Subsequent petitions for a post-conviction hearing were stricken. Defendants prosecute this consolidated appeal from the judgments of the circuit court of Cook County.
The deceased Jake Allen’s body was found in an alley in Chicago on the morning of January 10, 1963. It appears that he had been killed by a bullet fired from a .22 caliber revolver. The two defendants were arrested that afternoon at about 2 45 P.M. and searched. The search revealed that Holmes had a loaded .22 caliber revolver, additional shells, and a watch and automobile keys belonging to Jake Allen. Defendant Harper had a revolver and the deceased’s wallet.
They were taken to the police station and at 4 :oo P.M. orally admitted their involvement in the murder. At about 8:00 P.M. that night defendants confessed to the murder to an assistant State’s Attorney and a court reporter. The following morning the defendants signed the transcribed confessions and voluntarily testified before a coroner’s inquest essentially repeating their prior confessions.
Their statements were to the effect that they asked the deceased for a ride shortly after midnight. At a stop sign the defendants pulled guns and took a watch and wallet from the victim. After the victim attempted to conceal some money he was ordered out of the car where he was shot. The confessions and the testimony at the inquest were admitted into evidence, after a hearing on defendants’ motion to suppress.
On this appeal defendants contend that the motion to suppress was improperly denied; that the jury was improperly instructed; that the defendants were not advised of their constitutional right to counsel; that they were incompetently represented; and that their post-conviction petitions were improperly dismissed.
It appears from the hearing on the motion to suppress that defendants were interrogated after their arrest by police officers Mason, Walker, Lenz, Anderson and Denson. *401Defendants testified that they were brutally beaten and forced to confess in order to avoid further brutality. They further testified that they reported the brutality to a doctor at the county jail and to a parole officer named Bright.
Officers Mason, Walker and Lenz testified denying all claims of brutality. The assistant State’s Attorney and court reporter also testified that defendants were advised of their right to remain silent and they made no claim of brutality, but voluntarily gave their statements. The State did not call officer Anderson but his absence was explained as caused by serious illness. At the close of the first day’s proceedings the State announced that they would present the testimony of officer Denson the following morning, whereupon the trial court announced that he had heard enough and denied the motion to suppress.
From the evidence it is apparent that the defendants were handcuffed to a chair and a radiator while being held for interrogation; that defendant Holmes was spitting blood prior to his confession and that defendants were not brought before a magistrate or court until their arraignment twenty-one days after their arrest. The testifying police officers maintained that Holmes advised them that the blood he expectorated was from an ulcer.
It is well established in Illinois that when the voluntary nature of a confession is brought into question by a motion to suppress, it is the duty of the State to produce all material witnesses connected with the taking of the statements or explain their absence. People v. Wright, 24 Ill.2d 88; People v. Dale, 20 Ill.2d 532; People v. Sloss, 412 Ill. 61; cf. People v. Banks, 26 Ill.2d 259.
Under this rule the failure of the State to produce officer Denson, who was admittedly an available material witness and was claimed to have been involved in coercive brutality, would require a suppression of the confessions. However the State points out that section 114 — 11(d) of the Code of Criminal Procedure, (Ill. Rev. Stat. 1963, chap. *40238, par. 114 — 11(d)) provides that objection to the failure of the State to call all material witnesses on the issue of voluntariness of the confession must be made in the trial court. While no objection was made to the failure to call officer Denson, we are reluctant to say that the point was waived under the peculiar circumstances of this case. Here the State advised the court that it was prepared to call officer Denson the following morning, but the trial judge stated he had heard enough and denied the motion to suppress. In the face of this ruling it is understandable that counsel for the defense felt it useless to object to the failure to call further witnesses.
No medical evidence as to the cause of Holmes’s bleeding was adduced, nor were the medical records of the county jail produced, although defendants testified that they complained of physical harm to a doctor in the county jail. In People v. Thomlison, 400 Ill. 555, 561, the court stated: “Since the burden of proving by a preponderance of the evidence that confession is voluntary is on the State, the appearance of the defendant in the condition he was in requires clear and convincing proof that this condition was not produced by the actions of the police officers, and that it had nothing whatever to do with a confession made later on.”
It must also be noted that defendants were not brought before a judicial officer until twenty-one days after their arrest despite our statute requiring prompt presentment before a judicial officer. (Ill. Rev. Stat. 1965, chap. 38, par. 109 — 1.) We have not followed the Federal rule established in Me Nabb v. United States, 318 U.S. 332, 87 L. Ed. 819 and Mallory v. United States, 354 U.S. 449, 1 L. Ed. 2d 1479, that unnecessary delay in presentment before a magistrate per se renders a confession inadmissible. We have repeatedly stated that the McNabb-Mallory rule does not rest on constitutional principles and does not of necessity apply to State criminal prosecutions. People v. Novak, 33 I11.2d 343, *403348; People v. Kees, 32 Ill.2d 299; People v. Melquist, 26 Ill.2d 22.
However we have recognized that unreasonable delay-in presentment should be considered on the question of voluntariness of the confessions. People v. Taylor, 33 Ill.2d 417, 423; People v. Hall, 413 Ill. 615, 624.
In view of the long delay in presentment to a judicial officer, the admitted bleeding of one of the defendants, the lack of medical explanation for the bleeding, and the failure of the State to call all of the witnesses to the confessions, we conclude that the cause must be remanded for the purpose of a new hearing on the motion to suppress.
Defendants further argue that they were not properly advised of their rights prior to their confessions under the doctrine of Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977. Since the trial here antedates both Escobedo and also Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, those cases are not controlling. (Johnson v. New Jersey, 384 U.S. 719, 16 L. Ed. 2d 882.) From the record it is clear that defendants were not denied their constitutional rights to counsel under the rules expressed in People v. Hartgraves, 31 Ill.2d 375, cert. den. 380 U.S. 961, 14 L. Ed.2d 152, and their confessions need not be set aside on the ground of failure to advise them of their right to counsel.
We next consider the propriety of an instruction regarding attempted escape. The, State offered evidence that the defendants attempted to escape from custody, and the court instructed the jury as follows: “The Court instructs the jury that an attempted escape from custody raises a presumption of guilt of the crime charged.” We consider this instruction improper. We agree that it has been stated that an attempted escape is a “fact raising a presumption of guilt.” (People v. Gambino, 12 Ill.2d 29; People v. Talbe, 321 Ill. 80; People v. Duncan, 261 Ill. 339.) These cases, however, involved a question of whether or not evidence of an escape or attempted escape was admissible. The actual *404holding of the cases in which this language appears is that such evidence is admissible to be considered together with all other evidence. The State has cited no case, and we have found none, that approves an instruction in the language given here. The fact that certain language is appropriate in the context of an opinion does not necessarily justify its use in an instruction without further explanation.
The vice of the present instruction is that it appears to abolish the traditional presumption of innocence, (see People v. Weinstein, 35 Ill.2d 467; People v. Benson, 19 Ill.2d 50; People v. Long, 407 Ill. 210,) and singles out the fact of escape as sufficient in itself to create a prima facie case of guilt. While an escape or attempted escape may be evidence tending to prove guilt, it is not sufficient in itself to overcome the presumption of innocence. We, therefore, hold that the foregoing instruction should not have been given. In a case involving the death penalty it is imperative that the jury be properly instructed.
We have also examined defendants’ contention that they were not adequately represented by counsel. From the entire record it appears that trial counsel acted competently under difficulty of continual disagreement with the defendants, and we do not believe that defendants were denied adequate representation. Since the case must be re-tried we see no purpose in discussing the trial tactics objected to by defendants.
The alleged incompetency of counsel was also the basis of defendants’ post-conviction petitions. We have examined the allegation of these petitions and we believe that they were properly dismissed.
Because of the views we have expressed, the judgments must be reversed and the cause remanded for a new trial in accordance with the views expressed herein.
Reversed and remanded.
Mr. Justice Ward took no part in the consideration or decision of this case.