I concur in paragraph one of the syllabus and dissent from paragraph two of the syllabus and from the judgment.
The use of statements made by the defendant for im*63peachment without the warnings set forth in Miranda v. Arizona, 384 U. S. 436, having been given, is reversible error. t
In Miranda, Chief Justice Warren stated, at page 476:
“The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant. No distinction can be drawn between statements which are direct confessions and statements which amount to ‘admissions’ of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory.’ If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement. * * *” (Emphasis supplied.)
This specific reference to impeachment, I believe, forecloses the use of defendant’s in-custody statement in the instant case.
The United States Court of Appeals for the Second Circuit, in United States v. Fox, 403 F. 2d 97, arrived at a decision contrary to that arrived at by the majority in this case. Judge Bryan, at page 102, stated:
“These pronouncements by the Supreme Court may be technically dictum. But it is abundantly plain that the court intended to lay down a firm general rule with respect to the use of statements unconstitutionally obtained from a defendant in violation of Miranda standards. The rule *64prohibits the use of such statements whether inculpatory or exculpatory, whether bearing directly on guilt or on collateral matters only, and whether used on direct examination or for impeachment.”
See, also, Groshart v. United States, 392 F. 2d 172; Kent, Miranda v. Arizona—The Use of Inadmissible Evidence for Impeachment Purposes, 18 Case W. Res. L. Rev. 1177; 36 U. Cin. L. Rev. 738 (1967); 42 N. Y. U. L. Rev. 772. I would reverse.