concurring in judgment.
The court, in its original opinion in this case (2 Ohio St. 2d 172), relied entirely upon the authority of State v. McLeod (1965), in which I dissented, 1 Ohio St. 2d 60, reversed by the Supreme Court of the United States on May 24, 1965, 33 U. S. Law Week 3375.
In its opinion on motion for reconsideration, the court states that the facts in this case “bear no resemblance to either McLeod or Massiah.” This being the case, the court should not originally have relied upon McLeod, supra.
It requires no speculation on the part of this court to determine the basis for the reversal by the United States Supreme Court of State v. McLeod, supra. The defendant in that case was neither granted the right to confer with counsel, nor was he informed of his right to counsel or his right to remain silent. *63Hence, any statements made by him under those circumstances could not be used against him without prejudice to his constitutional rights. The court, in McLeod, supra, unduly limited the application of both Massiah v. United States (1964), 377 U. S. 201, 12 L. Ed. 2d 246 and Escobedo v. Illinois (1964), 378 U. S. 478, 12 L. Ed. 2d 977.
It is not the duty of defendant to request counsel. It is the duty of the officials attempting to obtain a confession from him to inform him of his rights, and, if he so desires, to give him the opportunity to consult with counsel and to have counsel present at the time he makes a statement.
In both Massiah, supra, and Escobedo, supra, the rationale appears to be twofold: (1) counsel was not present, (2) because of that fact, or by other means, those in charge of obtaining evidence imposed upon the accused in order to secure incriminating statements against him. Thus, in Massiah, supra, government agents used trickery to obtain statements at a time when the accused was unaware of the circumstances under which he was speaking. In Escobedo, supra, the accused was browbeaten by police officers, and was denied the right to consult with his attorney, even after requesting that he be allowed to do so. In McLeod, supra, the accused was not informed of his rights.
In the instant case, defendant had an attorney, and had not been denied the right to consult with him at any time. He voluntarily sought out the prosecuting attorney and the chief of police in order to make statements for the purpose of getting revenge upon another. He was informed by the prosecuting attorney, who knew that he was represented by counsel, that he had a right to remain silent, that his statements might be used against him, and that he could expect no consideration for the information he would give. During one of these discussions he indicated that he was dissatisfied with his attorney and might not continue to retain him.
These facts are sufficient to establish that there was no imposition upon the defendant, and that the use of his statements constituted no violation of his rights under the Sixth Amendment to the Constitution as made applicable to the states through the Fourteenth Amendment.