Upon a jury trial the appellant was found guilty of burglary and grand larceny, as charged by information, and his punishment assessed at 5 and 12 years respectively in the penitentiary. From a judgment on those verdicts comes this appeal. For reversal appellant contends that the trial court erred in admitting into evidence appellant’s incriminating admissions since they were involuntarily given. We must agree with the appellant’s contention.
The appellant objected to the proffered evidence of his confession to police officers. In accordance with the requirements in Jackson v. Denno, 378 U. S. 368 (1964), the court conducted an evidentiary hearing in chambers to determine the voluntariness of appellant’s confession. The trial court found the confession was voluntarily given and permitted appellant’s incriminating admissions to be presented in evidence to the jury.
When the voluntariness of a confession is disputed on federal constitutional grounds it is the responsibility of the appellate court to examine the entire record and make an independent determination of the voluntariness of the confession. Harris v. State, 244 Ark. 314, 425 S. W. 2d 293 (1968).
The appellant was arrested about 12:30 p.m. on a Saturday. He was placed alone in a security cell by the two arresting officers. About three hours later, these two officers brought him to their office and interrogated him about some stolen goods, some of which were exhibited to him. The appellant testified that his request to call a lawyer was denied and after 20 or 30 minutes of questioning he was returned to his cell. About an hour or two hours later the same officers “called me out again.” This time he was permitted to use the phone and he was unable to locate the lawyer he was calling. The officers then showed him a signed confession by the appellant’s brother and informed appellant that: “[T]hey had fingerprints and witnesses, that I might as well sign it and I told them I wanted to talk to a lawyer before I signed anything. So they took me back to my cell.” This interrogation lasted about 20 minutes. He was left in the security cell for another two or three hours before he was again interrogated by two other officers. Up to this point his narration of events appears uncontradicted.
These two different officers resumed the questioning of appellant about 9:30 that night. One of these officers testified that they began their interrogation by reading to him a waiver form that incorporated the safeguards which are required in Miranda v. Arizona, 384 U. S. 436 (1966). The officer testified that the appellant responded by saying:
“I understand what my rights are but I do not want to sign the waiver. I’ll tell you what happened, but I will not sign the waiver.”
This officer testified that the appellant also said: “[H]e didn’t want to sign a waiver until he talked with a lawyer.” Further, the appellant made no request in his presence to call a lawyer. This officer stated that he continued to interrogate appellant and made notes in longhand as to what he told him. The appellant was returned to his cell. The officer typed “the report” and about 10:20 p.m. the appellant was again removed from his cell at which time it appears that he signed this report or statement.
The other officer who was present during this interrogation verified that the Miranda warning was read to appellant by his fellow officer. He was asked what response appellant made after reading to him his rights. He answered: “At first he advised that he would decline to talk to begin with for just a few minutes, then he changed his mind.” This officer also testified that the appellant refused to sign a waiver. Further:
“Q. Did he request an attorney at that time?
A. Yes, and he said he’d been attempting to call one. We offered again at that time to let him call.
Q. He refused to sign a waiver without an attorney being present?
A. Y es, sir.
Q. How long thereafter did the interrogation continue?
A. Probably ten or fifteen minutes.”
The officer further testified that when the appellant was told he could use the phone to call a lawyer the appellant replied that: “[H]e had tried to call a short time before and he wasn’t in.” The appellant thereafter made and signed the incriminating statement.
The question is presented whether the confession made by the appellant comports with the requirements in Miranda that:
“Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact, that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. * * *”
In Harris v. State, supra, we said:
“The prerequisites for the admission in evidence of any statements made by a defendant when he is in custody of officers are found in Boyd and Byrd v. State, 230 Ark. 991, 328 S. W. 2d 122 (1959). There is a presumption that it is involuntary; and the burden is on the State to show the statement to have been voluntary, that is, freely and understandably made without hope of reward or fear of punishment. In making those determinations the court looks ‘to the whole situation and surroundings of the accused.’ ”
In the case at bar, after an independent review of the entire record of the Denno proceeding and considering the total situation and the surroundings of the appellant, we must conclude that this 19-year-old boy’s incriminating statements, even though he had previously had experience as an offender, were involuntary and, therefore, inadmissible when the requirements of Miranda are applied, together with those of Harris v. State, supra. In the very recent case of Pierce v. State, 248 Ark. 204, 451 S. W. 2d 219, we interpreted Miranda to mean that the accused has the unqualified right to stop the questioning and consult with an attorney and this request precludes further questioning until there is in fact the requested consultation.
It necessarily follows that the judgment must be reversed and the causes remanded.
Fogleman, J., dissents.