(dissenting).
Upon the basis of all of the evidence presented at the trial, the trial judge determined it was unfair and improper to use the confessions which had been obtained from the defendants. In reviewing that ruling there are certain basic propositions which should be applied. This court has heretofore indicated that the question as to whether the constitutional rights of an accused were respected is primarily for the trial court to determine;1 and that the same as with respect to other questions of fact, because of that prerogative, and his advantaged position, we indulge some deference to the determination he has made, and will not upset it so long as there is a reasonable basis in the evidence giving it support.2
The questioning of the students was handled in the first phase by the school guidance counselors. The pattern of procedure followed was that when the questioning implicated a student, the suspect was taken before the police officer, and while in the presence of the counselor, for what amounted to a repetition and confirmation of information already obtained.
Because of my belief that the trial court’s determination should be sustained, I feel that it is only fair and proper that I state a brief summary of the facts relating to obtaining the confessions, as I see them *436upon a view of the record in the light supporting that conclusion. Reid Barber was roused from his bed at 11:00 p. m., Tuesday, April 9th. He was taken to a room in the main building where he waited for one hour. He talked to someone he did not know and was then allowed to return to his bed. On Wednesday night, April 10th, he was summoned to speak with Counselor Smith and Officer Sneddon. He was read the Miranda warning, and was told by Officer Sneddon, “We’ll take you down to jail right now if you don’t tell the truth.” He says he then gave a statement hoping that if he told the truth he would not go to jail.
Chavez Whitehorse was roused from his bed at 2:00 a. m., Thursday, April 11th. He was taken from one room to another, a total of four in all, and finally questioned by Officer Sneddon and Counselor Edward. Upon the commencement of the interrogation Sneddon told him, “Sit still and be silent!” He flatly denied the charges, but was constantly accused of lying. Some two hours and forty-five minutes after he was roused he finally got back to bed at about 4:45 a. m.
Harry Tsosie was roused from his bed at 10:30 p. m., April 9th, and questioned for three and one-half hours intermittently by Counselor Smith who recorded what he said. At 2:30 a. m. he was taken into the next room where Officer Sneddon was waiting. Sneddon indicated that it was of no use to tell anything other than what he had told Smith because he had just listened to the tape recording of his conversation with Smith, implying that he already had his testimony. Counselor Smith remained present during the questioning while Tsosie made his statement.
Mose Clark was roused from his bed at 11:00 p. m. on Wednesday, April 10th. He waited in a room alone for approximately twenty-five minutes. He was then questioned by Officer Sneddon and Counselors Quayle, Palmer and Speaks. After giving him the Miranda warning, Sneddon told him that he, Sneddon, got off duty at 5 :00 a. m. and they would stay up until then if he didn’t tell the truth. He then gave his statement.
Harrison Largo was interrogated Thursday evening, April 11th, by Counselors Smith and Palmer. Smith told Largo that if he (Largo) didn’t tell the truth he would keep going until he got it. After one hour he confessed to them and was then immediately ushered into the next room where Officer Sneddon was waiting.
Clarence Peter was summoned from a movie on Saturday at 2:00 p. m. He took his girl back to her dorm, made a date with her for later that evening and went to the interrogation building. He waited alone for over four hours. Shortly after 6:00 p. m. he was questioned by Officer Sneddon *437and Counselors Speaks and Peter. He flatly denied any participation in the affair, but Sneddon kept going on and told him that they already knew about his role in the affair, and that they would stay until he told the truth. He decided to answer questions affirmatively in an effort to be released so that he would not fail to keep his date with his girl friend.
In reference to the procedure mentioned and the information obtained, I assume that the correctness of the rule of Escobedo v. Illinois,3 under its particular circumstances: that when the investigation of a crime has passed from the general investigatory phase and becomes focused as an accusation of the crime upon the suspect, he is then entitled to be advised concerning his right of counsel and to have a request he makes in that regard complied with. It is not my desire, nor do I believe proper procedure in the investigation of crime requires, the extension of that ruling beyond fact situations similar to those of that case where there was an “in-custody” interrogation by officers who had him under their domination and control.4 I note my awareness and approval of authority to that effect.5
The critical question here as to the propriety and fairness of the procedure in obtaining the confessions should not be answered solely upon the basis of the questioning of either the school counselors or of the police officers, but whether the two considered together would come within the ambit of the Escobedo rule. In addition to the facts above recited there are certain aspects of the evidence which give support to the trial court’s determination. These teenage Indian youths were away from their home environment. They were in effect confined in an institution. The school officials had supervisory and disciplinary control over them. There was testimony to the effect that the school counselors were “the police” of the school. The questioning by those officials was carried out in an atmosphere that the court could well regard as adversarial to them. It is obvious from the trial judge’s comments quoted below, particularly the emphasized portions, that he thought the questioning had proceeded beyond the investigatory to the accusatory stage before the warnings were given. In commenting upon the motion in arrest of judgment, after having heard all of the evidence in the case, he made these observations :
*438Gentlemen * * .* on. the proposition that the state or the federal government can, after first extracting an oral confession from a defendant, in this case by guidance counselors * * * forget about the oral confession and take a man in the next room, where a police officer is seated, who for the first time reads from the card (the Miranda warning) and advises the defendant of his rights. This court feels that it’s within the purview of the decisions * * * that no statement, oral or written, can be taken from anyone * * * when the accusatory phase is commenced without the giving of the Miranda warnings. In this case the guidance counselors did not give the Miranda warnings to these boys when the first oral statements and confessions were obtained. In this court’s view * * the statements obtained by the officer were so tainted and muddled up that they couldn’t be said to be free and voluntary. [Emphasis added.]
There appears to be considerable merit in the argument that approval of the procedure here followed would provide a method for circumventing the requirement of safeguarding the constitutional rights of an accused. It is my judgment that if proper deference were allowed to the prerogatives of the trial court, his exclusion of the confessions would be justified, and I am not persuaded that it should be overturned.
Notwithstanding the conclusion just stated, I am in accord with the position of the prosecution that the defendants would not in any event be entitled to an outright release under a permanent arrest of judgment. When an error of the character here under consideration has been committed, what the defendants are entitled to is a new trial in the absence of that error.6 It comports with neither law, justice nor common sense for one who is accused of committing a serious crime to go free merely because someone made a mistake. In a situation such as this, even though the motion in arrest of judgment was granted, the rule of double jeopardy does not bar further proceedings.7 It may be true that it would be difficult, or the district attorney or the trial court may think it impossible, for the State to make a case against the defendants without confesssions. But on the basis of the record before us we have no certain knowledge of that fact. Accordingly, the proper disposition of this case would be to remand it for such further proceedings, if any, as may seem advisable in the premises but honoring the ruling the trial court made as to the confessions.
. See State v. Criscola, 21 Utah 2d 272, 444 P.2d 517; and see also Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Miller v. United States, 8 Cir., 354 F.2d 801.
. Ibid. One wonders about tbe application of this rule in this case, particularly in the concurring opinion.
. 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964).
. See Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311, in which the Supreme Court talked about the Miranda requirement when a person being questioned was “in custody at the station or otherwise deprived of his freedom of action in any significant way.”
. United States v. Manglona, 414 F.2d 642 (9 Cir. 1969); Minor v. State, 6 Md. App. 82, 250 A.2d 113; People v. Crabtree, 239 Cal.App.2d 789, 49 Cal.Rptr. 285.
. Cf. State v. Lawrence, 120 Utah 323, 234 P.2d 600; and see Orozco v. Texas, supra.
. See 21 Am.Jur.2d 509, Crim.Law, Sec. 524; State v. Stephenson, 69 Kan. 405, 76 P. 905 (1904); People v. Allen, 252 Mich. 553, 233 N.W. 412 (1930); State v. Moore, 93 N.H. 169, 37 A.2d 15 (1944); State v. Faulkner, 241 N.C. 609, 86 S.E. 2d 81.