(dissenting) — I dissent.
The facts surrounding appellant’s arrest and detention, and concerning which there is no material dispute,1 are as follows:
Appellant was arrested at approximately nine p. m., Thursday, December 19, 1957. The police officers testified that there was little doubt appellant had committed the crime in question. He was taken to the police station, questioned by two police officers, and pressed for a statement of guilt. He then asked permission to call an attorney, but he was told that he could do so only if he “co-operated” and made the statement. The complaining witnesses positively identified him as one of the two men who had robbed them. Nevertheless, when he was taken to the city jail, he was booked on an “open charge,” or, in plain language, held for investigation without charge, characterized by police officials as the “small book” which prohibited telephone calls or visitors.
Appellant was interrogated from about 10:30 p. m. to midnight by a police lieutenant who, observing the rules *728of the small book, denied appellant’s request to call his wife. The next morning, appellant was again interrogated for approximately one and one-half hours. His request to call his wife was reiterated and again refused. The police said that when appellant made a statement he would be booked on a specific charge, and only then would he be allowed to call his wife. The police answer was repeated over and over again.
Subsequently that morning, appellant dictated, but refused to sign, a statement. It was offered in evidence by the state and admitted. The quoted portion reveals the unfairness which attended the entire police proceedings:
“Q. Have we made you any threats or promises? A. No. Q. Has any police officers [sic] made you any promises or threats? A. No — except that the Lieutenant promised me that as soon as I was hooked that I could call my wife. Q. You are being held for investigation — you haven’t been booked yet. When you are, you will be able to phone your wife.” (Italics mine.)
When asked to sign the statement, appellant refused to do so and again requested permission to call his wife, which was again refused. Instead, he was conducted to a deputy prosecutor’s office where he was asked to make another statement. He did so, but again he refused to sign because he had not been allowed to call his wife. He was again promised that he would subsequently be allowed to call. He finally did sign a stenographic transcription of the statement previously made at the city jail, but refused to sign the new one. It was only then that he was charged with robbery, and was taken for a preliminary hearing before a magistrate about four p. m. the day after arrest.
At the preliminary hearing, appellant signed another copy of the statement he had made at the city jail. He was then bound over and transferred to the county jail where he was confined until the following Tuesday or Thursday, December 24th or 26th, when he was returned to the deputy prosecutor’s office and again asked to sign the statement previously made there. He again refused. It was in that office, on December 24th or 26th, either five or seven days *729after his arrest, that appellant was allowed to make his first contact with the outside world, a telephone call to his wife.
At no time from his arrest on December 19th to the time of the telephone call on December 24th or 26th, was appellant allowed to communicate with anyone outside despite his repeated requests to do so. Appellant’s wife had telephoned the city jail where he was incarcerated on Friday, December 20th. She was refused any information at that time except the fact that he was being held. The following day, Saturday, December 21st, she called at the jail in a futile attempt to see him but was not successful until Thursday, December 26th, one full week after the arrest.
It cannot be overemphasized that the police themselves admitted that appellant was confined under the small book, which prohibited all visitors and utterly precluded any communication with the outside world.
At no time during the first twenty-four hours, at the end of which appellant signed a confession, or during the ensuing proceedings covering a full week, was he represented by counsel despite repeated requests. Such, then, are the facts revealed by the record brought here.
In criminal prosecutions, both in England and in the United States, the accusatorial system prevails in contrast with the inquisitorial method of continental Europe. Of this, Mr. Justice Frankfurter for the court in Watts v. Indiana, 338 U. S. 49, 93 L. Ed. 1801, 69 S. Ct. 1347, said:
"... Ours is the accusatorial as opposed to the inquisitorial system. Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber from the Continent whereby an accused was interrogated in secret for hours on end. See Ploscowe, The Development of Present-Day Criminal Procedures in Europe and America, 48 Harv. L. Rev. 433, 457-58, 467-473 (1935). Under our system society carries the burden of proving its charge against the accused not out of his own mouth. It must establish its case, not by interrogation of the accused even under judicial safeguards, but by evidence independently secured through skillful investigation. ‘The law will not suffer a prisoner *730to be made the deluded instrument of his own conviction.’ 2 Hawkins, Pleas of the Crown, c. 46, § 34 (8th ed., 1824). The requirement of specific charges, their proof beyond a reasonable doubt, the protection of the accused from confessions extorted through whatever form of police pressures, the right to a prompt hearing before a magistrate, the right to assistance of counsel, to be supplied by government when circumstances make it necessary, the duty to advise an accused of his constitutional rights — these are all characteristics of the accusatorial system and manifestations of its demands. ...”
Even in Haley v. Ohio, 332 U. S. 596, 92 L. Ed. 224, 68 S. Ct. 302, the confession typed by the police contains a prologue that the accused was advised of his constitutional right not to speak and that anything he said might be used against him. Modern English law requires the identical safeguards. Mr. Justice Devlin of the High Court of Justice, in his recent work respecting police interrogation, entitled “The Criminal Prosecution in England” (Yale U. Press, 1958), said:
“The form of caution expresses two things. First, there is the reminder that the accused is not obliged to talk; secondly, there is the warning that, if he does talk, what he says will be taken down in writing and may be given in evidence. . . . ” Devlin, The Criminal Prosecution in England, chapter 2, p. 31, 36.
During the police examination of the accused, the signed question and answer confession discloses that appellant begged to talk even to the prosecutor. This, too, was denied him. The overpowering circumstance of this record is that the accused was never advised of his constitutional right to refuse to speak or that, if he did so, his statement might be used against him; nor was he accorded his constitutional right to counsel.
In light of the long struggle for human rights culminating in our constitutional prohibition against self incrimination and the constitutional guaranty of the right to counsel, I am not persuaded that the admission in evidence of a confession under the circumstances disclosed by this record *731comports with the due process requirement of the fourteenth amendment to the Federal constitution.
The state contends, and the court holds, that the sole issue to be determined in deciding whether appellant was accorded due process of law as required by the fourteenth amendment to the United States constitution and Art. I, § 3, of the Washington state constitution, is whether the confession was voluntary or not. It is held that the jury properly made such determination. However, voluntariness is not to be considered in isolation, but the question on the due process issue is whether the totality of the circumstances show that the appellant’s “will was overborne at the time he confessed.”
The methods employed in criminal prosecutions are limited by the fundamental rights guaranteed by the constitution, and evidence thus produced may not be used if such use results in a violation of those rights. Lisenba v. California, 314 U. S. 219, 86 L. Ed. 166, 62 S. Ct. 280; Chambers v. Florida, 309 U. S. 227, 84 L. Ed. 716, 60 S. Ct. 472.
Here we are confronted with a violation of the right to counsel prior to trial. Such constitutional right is explicitly guaranteed by the state and Federal constitutions. Without the effective assistance of counsel, the fairness required by due process is impossible.
From the undeniable facts with which this record fairly bristles, it is certain that for a whole week following his arrest, in spite of repeated requests, appellant was denied the right to see or communicate with anyone not positively identified with his prosecution.
The New York court of appeals decided in People v. Di Biasi, 7 N. Y. (2d) 544, 166 N. E. (2d) 825, that constitutional rights were violated when police continued to interrogate one charged with murder in the absence of his attorney. The appellate division of the supreme court of New York in People v. Stevenson, 213 N. Y. S. (2d) 930, subsequently reversed the dismissal of a petition for a writ of error coram nobis because the accused should have been permitted to prove that he was interrogated by the police in the absence of counsel, which violated his constitutional rights.
*732The court’s decision affirming Haynes’ conviction cannot stand in the face of Reck v. Pate, 367 U. S. 433, 6 L. Ed. (2d) 948, 81 S. Ct. 1541 (June 12, 1961). The circumstances of that case are strikingly similar to those presented here and are briefly summarized by Mr. Justice Douglas in his concurring opinion:
“He was arrested Wednesday morning, March 25, 1936. The next day, March 26, his father went to the police asking where his son was and asking to see him. The police would give him no information. On March 27 his father came to the police station again but was not allowed to see his son. Later the father tried to see his son at the hospital but was denied admission.
“The father was denied the right to see his son over and again. The son was held for at least eight full days incommunicado. He was arraigned before a magistrate on April 2, 1956 [sic, 1936] only after he had confessed.”
The court’s opinion stated the test was:
“ . . . The question in each case is whether a defendant’s will was overborne at the time he confessed. . . . ”
Mr. Justice Douglas, in his concurrence, made a statement that precisely fits the circumstance which the court here sanctions:
“We do know that long detention, while the prisoner is shut off from the outside world, is a recurring practice in this country — for those of lowly birth, for those without friends or status. ...”
I cannot agree that the defendant’s right to a fair trial was not denied by the admission in evidence of this confession.
In Crooker v. California, 357 U. S. 433, 2 L. Ed. (2d) 1448, 78 S. Ct. 1287, quoted and approved in State v. Johnson, 53 Wn. (2d) 666, 335 P. (2d) 809, the supreme court of the United States said:
“ . . . state refusal of a request to engage counsel violates due process not only if the accused is deprived of counsel at trial on the merits, Chandler v. Fretag, supra [348 U. S. 3, 99 L. Ed. 4, 75 S. Ct. 1], but also if he is deprived of counsel for any part of the pretrial proceedings, provided that he is so prejudiced thereby as to infect his subsequent *733trial with an absence of ‘that fundamental fairness essential to the very concept of justice.’ . . . ”2
The first issue for determination is whether the denial of appellant’s constitutional right to counsel resulted in an absence of fairness in his prosecution.
The right to have counsel at the pretrial stage is almost invariably necessary to give meaning and protection to the right to be heard at trial itself. See Chandler v. Fretag, 348 U. S. 3, 99 L. Ed. 4, 75 S. Ct. 1; House v. Mayo, 324 U. S. 42, 89 L. Ed. 739, 65 S. Ct. 517; Avery v. Alabama, 308 U. S. 444, 84 L. Ed. 377, 60 S. Ct. 321; Powell v. Alabama, 287 U. S. 45, 77 L. Ed. 158, 53 S. Ct. 55. Mr. Justice Jackson stated in a separate opinion in Watts v. Indiana, 338 U. S. 49, 93 L. Ed. 1801, 69 S. Ct. 1347, 1357, as follows:
“If the State may arrest on suspicion and interrogate without counsel, there is no denying the fact that it largely negates the benefits of the constitutional guaranty of the right to assistance of counsel. Any lawyer who has ever been called into a case after his client has ‘told all’ and turned any evidence he has over to the Government, knows how helpless he is to protect his client against the facts thus disclosed.”
Thus, as a consequence of police interrogations and procedures which result in the accused making an incriminating statement before he is allowed to consult with counsel, a lawyer’s subsequent efforts, despite eminent ability and diligent application, inevitably lack effectiveness.3
In Ex parte Sullivan, 107 F. Supp. 514, two accused persons requested counsel upon arrest and ensuing interroga*734tion. Counsel was denied them. Incriminating statements made during the interrogation period were admitted in evidence in a state court. The conviction was a denial of due process. The court held:
“. . . unquestionably Petitioners were entitled to have effective counsel at the trial. The question here is how they ever could have had effective counsel at the trial, no matter how skilled, in view of what went on before trial. They were denied effective counsel at the trial itself because of what went on before trial while the defendants were without counsel, and absolutely under the control of the prosecution.”
Former United States Circuit Judge Justin Miller, when Dean of the Duke University Law School, in his discussion entitled “Lawyers and the Administration of Criminal Justice,” 20 American Bar Jour. 77 (1934), declared:
“ . . . Although competent counsel is of great value at that time, the time when an accused person really needs the help of a lawyer is when he is first arrested and from then on until trial. The intervening period is so full of hazards for the accused person that he may have lost any legitimate defense, long before he is arraigned and put on trial. . . ."4
Von Moltke v. Gillies, 332 U. S. 708, 92 L. Ed. 309, 68 S. Ct. 316, teaches that prior to trial an accused is entitled to rely upon counsel to make an independent examination of the facts and the applicable law without which an informed *735judgment is impossible.5 This appellant groped in the dark, misled by his prosecutors. While perhaps this is not coercion, resort to speculation is unnecessary to know that one learned in the law would have advised that “silence is golden” and that he had a constitutional right not to speak.
State v. Levy, 8 Wn. (2d) 630, 113 P. (2d) 306, approved the statement made in State v. Manderville, 37 Wash. 365, 79 Pac. 977, and State v. Dale, 115 Wash. 466, 197 Pac. 645:
“ ‘Where an error is made which violates a constitutional provision, the judgment in a criminal case will ordinarily be reversed without a showing that said error did prejudice the rights of the defendant, unless the facts and circumstances be such that it affirmatively appears that such defendant was not, and could not have been, injured thereby.’
Glasser v. United States, 315 U. S. 60, 86 L. Ed. 680, 62 S. Ct. 457, held:
“ . . . The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial. ...”
In Powell v. Alabama, supra, the supreme court of the United States said:
“ . . . Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare *736his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. ... If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. ...” (Italics mine.)6
In Crooker v. California, supra, the conviction was affirmed because the accused was an intelligent college graduate with a law school training, which included criminal law and evidence, who knew that he could rightfully refuse to speak. The present circumstances are the reverse. The appellant’s education was not only limited, but his intelligence fails to rise above mediocrity and his knowledge of the law is a minus factor. His timely request for counsel was denied until such assistance was pointless. Such was denial of a constitutional right, and prejudice is presumed. Butzman v. United States, 205 F. (2d) 343; Williams v. Kaiser, 323 U. S. 471, 89 L. Ed. 398, 65 S. Ct. 363; Glasser v. United States, supra; Jablonowski v. New Jersey, 29 N. J. Super. 109, 102 A. (2d) 56.
In Watts v. Indiana, supra, the supreme court of the United States held:
“ . . . To turn the detention of an accused into a process of wrenching from him evidence which could not be extorted in open court with all its safeguards, is so grave an abuse of the power of arrest as to offend the procedural standards of due process.”7
*737A fundamental lack of fairness fatal to due process results.
But there is another and more compelling reason for excluding the confession. RCW 9.33.020 (5) is as follows:
“No officer or person having the custody and control of the body or liberty of any person under arrest, shall refuse permission to such arrested person to communicate with his friends or with an attorney, nor subject any person under arrest to any form of personal violence, intimidation, indignity or threats for the purpose of extorting from such person incriminating statements or a confession. Any person violating the provisions of this section shall be guilty of a misdemeanor.” (Italics mine.)
The undeniable facts disclosed by this record show a violation of the statute. Appellant was not charged until after the confession was signed, the day following his arrest, during which time his every request to communicate with the outside world was denied. In that interval, he was not advised of his right to refuse to talk to the police.
The statute is violated if, for the purpose of extorting a confession, the person under arrest is denied permission to communicate with friends or an attorney. The instruction is set out in the margin.8 The statute does not require that the purpose must have been successful, that is, that the *738confession be actually extorted through the denial of counsel. Denial of the right to communicate for that purpose is sufficient and an added element that the confession must, in fact, have been induced by such action denudes the statute.
Therefore, “voluntariness” is not material, for by the plain terms of the statute the question is whether the accused was denied permission to communicate with friends or counsel and whether the purpose of such refusal was to obtain an incriminating statement or confession.
It is not difficult to determine why his repeated requests for outside communication were denied, nor why his wife was refused permission to see him on her visit to the jail for that purpose prior to the confession. Detention without charge is a time-honored method for keeping an accused under the exclusive control of the police who are thereby able to operate at their leisure while the accused is at their mercy. Reck v. Pate, supra.
The postconfession events are equally germane to the preconfession exploits in consideration of the question of whether the police conduct and purpose was in violation of the statute, because a callous disregard by police of appellant’s constitutional and statutory rights is manifested.
Haley v. Ohio, supra, held:
“. . . It is said that these events are not germane to the present problem because they happened after the confession was made. But they show such a callous attitude of the police towards the safeguards which respect for ordinary standards of human relationships compels that we take with a grain of salt their present apologia that the five-hour grilling of this boy was conducted in a fair and dispassionate manner. When the police are so unmindful of these basic standards of conduct in their public dealings, their secret treatment of a 15-year-old boy behind closed doors in the dead of night becomes darkly suspicious.
*739“. . . Formulas of respect for constitutional safeguards cannot prevail over the facts of life which contradict them. ...”
The state’s answer is that, if the police violated the statute, the guilty should be punished; but that overlooks the fundamental purpose of the statute itself which is to prohibit a denial of communication with friends or counsel. The state should not be permitted to offer in evidence a confession obtained by the unlawful conduct of the police. Public policy forbids.9
The proper rule of law to be applied under the circumstances of this record is the one applied in the unlawful search and seizure cases.10 State v. Buckley, 145 Wash. 87, 89, 258 Pac. 1030, said:
“It is the rule of the English courts, and is the rule of the courts in a majority of the American states, that the admissibility of evidence is not affected by the manner in which, the means by which, or the source from which, it is obtained. It is held that, if the evidence is otherwise pertinent to the issue, it is no valid objection to its admissibility to show that it was unlawfully or illegally obtained. See the note of Mr. Freeman to State v. Turner, 82 Kan. 787, 109 Pac. 654, 136 Am. St. 129, 135. The highest court of the land, however, has uniformly followed a contrary rule. It has said, in no uncertain language, that it is beneath the dignity of the state, and contrary to public policy, for the state to use for its own profit evidence that has been obtained in violation of law. Boyd v. United States, 116 U. S. 616; Weeks v. United States, 232 U. S. 383; Silverthorne
*740Lumber Co. v. United States, 251 U. S. 385; Gouled v. United States, 255 U. S. 298; Amos v. United States, 255 U. S. 313; Agnello v. United States, 269 U. S. 20. We have ourselves followed the Federal rule. State v. Gibbons, 118 Wash. 171, 203 Pac. 390; State v. Dersiy, 121 Wash. 455, 209 Pac. 837; State v. Smothers, 121 Wash. 472, 209 Pac. 839.”
Other cases are collected in the margin.11
Instruction No. II12 was clearly erroneous because it told the jury without reservation that a confession was not rendered involuntary because the accused was not reminded that he was under arrest, that he was not obliged to reply, that his answer would be used against him, nor that he was entitled to be represented by counsel; while the law is that *741such circumstances are to be considered in determining whether the confession is voluntary or involuntary.13
The approved instruction was summarized in Stroble v. California, 343 U. S. 181, 189, 96 L. Ed. 872, 72 S. Ct. 599, as follows:
“The trial court charged the jury that it could not consider a confession unless it was voluntary; that the jury was the sole judge of voluntariness; and that a confession was not voluntary when obtained by any kind of violence, abuse, or threat, or by ‘any coaxing, cajoling, or menacing influence which induces in the mind of the defendant the belief or hope that he will gain some advantage by making a confession.’ The court further charged that the fact that a confession is made while an accused is under arrest and being detained, or when he is not represented by counsel, or without his having been told that any statement he makes may be used against him, does not in itself make the confession involuntary, but is one circumstance to be considered in determining the voluntariness of the confession. ...” (Italics mine.)
Again we are admonished by Rogers v. Richmond, 365 U. S. 534, 5 L. Ed. (2d) 760, 81 S. Ct. 735, that ours is an accusatorial and not an inquisitorial system. The court there said:
“Our decisions under that Amendment have made clear that convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial *742system — a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth. See Chambers v. Florida, 309 U. S. 227; Lisenba v. California, 314 U. S. 219, 236; Rochin v. California, 342 U. S. 165, 172-174; Spano v. New York, 360 U. S. 315, 320-321; Blackburn v. Alabama, 361 U. S. 199, 206-207. And see Watts v. Indiana, 338 U. S. 49, 54-55. . . . ”
Rogers’ lawyer was not allowed to confer with him because the coroner had prohibited all communication with the prisoner. Rogers himself was likewise denied the right to see counsel.
The conviction was affirmed by the Connecticut supreme court — not because the confession was voluntary, but because it was true.
The United States supreme court reversed because the Connecticut courts applied the wrong test.
"... The employment instead, by the trial judge and the Supreme Court of Errors, of a standard infected by the inclusion of references to probable reliability resulted in a constitutionally invalid conviction, pursuant to which Rogers is now detained ‘in violation of the constitution.’ A defendant has the right to be tried according to the substantive and procedural due process requirements of the Fourteenth Amendment. This means that a vital confession, such as is involved in this case, may go to the jury only if it is subjected to screening in accordance with correct constitutional standards. To the extent that in the trial of Rogers evidence was allowed to go to the jury on the basis of standards that departed from constitutional requirements, to that extent he was unconstitutionally tried and the conviction was vitiated by error of constitutional dimension.”
Here the jury was given a wrong test for determining the admissibility of a confession. The law is that, in determining whether the confession was involuntary or voluntary, the jury is entitled to consider whether the appellant was advised that he need not answer, or that, if he did, his admissions would be used against him, or that he was entitled to consult counsel before answering; whereas, the court instructed that such circumstances did not render the confession involuntary.
*743The state’s argument that the conviction should be sustained, because, independent of the confession, there was ample proof of guilt, is untenable. Upon appeal, the issue is whether the appellant’s constitutional rights have been infringed. His guilt or innocence is for the jury’s determination exclusively.
The proofs of guilt, which are said to be sufficient to sustain a conviction, were all known to the police prior to the confession, which furnishes all the more reason appellant should have been promptly charged with the crime and a preliminary hearing before a magistrate held. But the desire to wrap up the case with a confession was irresistible, and the unconstitutional course of conduct was pursued.
If an incompetent confession has been admitted, the conviction will be set aside by the nation’s supreme court even though the evidence, apart from the confession, was sufficient. Payne v. Arkansas, 356 U. S. 560, 2 L. Ed. (2d) 975, 78 S. Ct. 844; Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469, 73 S. Ct. 397, 437; Malinski v. New York, 324 U. S. 401, 89 L. Ed. 1029, 65 S. Ct. 781; Lyons v. Oklahoma, 322 U. S. 596, 88 L. Ed. 1481, 64 S. Ct. 1208.
I would reverse the judgment and order a new trial with directions to exclude the confession if offered.
Rosellini, J., concurs with Foster, J.
The testimony of one member of the police department that he did not remember telling the appellant that he could not telephone until he made the requested statement does not amount to a denial of appellant’s positive testimony that the police did so, especially when appellant testified that other members of the police department made similar statements.
In Thorne v. Callahan, 39 Wn. (2d) 43, 234 P. (2d) 517, this court held that a denial of counsel, which resulted in unfairness to the accused, was a denial of due process.
In State v. Phillips, 59 Wash. 252, 109 Pac. 1047, this court held:
“ . . . The aid of counsel is guaranteed by the constitution to every person accused of crime, and this is universally recognized as one of the surest safeguards against injustice and oppression. Any conduct or statement on the part of the court that tends to impair the influence or destroy the usefulness of counsel is palpable and manifest error. . . . ”
Certainly, such holding is applicable to any official acts, whether during or before trial, which impair the usefulness of counsel.
See 44 Ky. L. Jour. 103, Criminal Procedure — Right to Counsel Prior to Trial, wherein it is said:
“If at any time, from the time of his arrest to final determination of his guilt or innocence, an accused really needs the help of an attorney, it is in the pre-trial period. . . . Indeed, the pre-trial period is so full of hazards for the accused that, if unaided by competent legal advice, he may lose any legitimate defense he may have long before he is arraigned and put on trial. ...”
In a concurring opinion in Spano v. New York, 360 U. S. 315, 3 L. Ed. (2d) 1265, 79 S. Ct. 1202, Chafee, Documents on Fundamental Human Rights, pamphlet 2 (1951-1952), p. 541, is quoted as follows:
“ ‘. . . A person accused of crime needs a lawyer right after his arrest probably more than at any other time. . . . ’ ”
See, also, Orfield, Criminal Procedure From Arrest to Appeal, chapter 1, § 23, p. 43 (1947).
“This court has held that even where it appeared to the court that “ . . . the issues oí fact and law were comparatively simple,” counsel, nevertheless, had the duty “to make a full and complete investigation of both the facts and the law in order to advise his client and prepare adequately and efficiently to present any defenses he might have to the charges against him. ...” State v. Hartwig, 36 Wn. (2d) 598, 219 P. (2d) 564.
The services of a lawyer even in such a situation are deemed indispensable and the time needed for adequate and effective preparation must be granted. .
As was stated by Mr. Justice Douglas, dissenting, in Bute v. Illinois, 333 U. S. 640, 92 L. Ed. 986, 68 S. Ct. 763:
“ . . . The reason is that the guilty as well as the innocent are entitled to a fair trial, that a layman without the experience and skill of counsel to guide him may get lost in the intricacies of the law and lose advantages which it extends to every accused, that without expert appraisal of the circumstances surrounding his arrest, detention, arraignment, and conviction the penalties he suffers may be aggravated by his own ignorance or by overreaching of the prosecution or police.
In Spano v. New York, supra, the United States supreme court reversed a state court conviction where “. . . The police were not . . . merely trying to solve a crime, or even to absolve a suspect. . . . They were rather concerned primarily with securing a statement from defendant on which they could convict him. The undeviating intent of the officers to extract a confession from petitioner is therefore *737patent. ...” Such was held to be a major consideration in the court’s reasons for reversal.
In Chalmers v. H. M. Advocate, 1954 Sess. Cas. (Ct. Just.) 66, 78, the Court held:
“ . . . The theory of our law is that at the stage of initial investigation the police may question anyone with a view to acquiring information which may lead to the detection of the criminal; but that, when the stage has been reached at which suspicion, or more than suspicion, has in their view centred upon some person as the likely perpetrator of the crime, further interrogation of that person becomes very dangerous, and, if carried too far, e.g., to the point of extracting a confession by what amounts to cross-examination, the evidence of that confession will almost certainly be excluded. ...”
“You are instructed that Subdivision 5 of Section R.C.W. 9.33.020 reads as follows:
“ ‘No officer or person having the custody and control of the body or liberty of any person under arrest, shall refuse permission to such arrested person to communicate with his friends or with an attorney, nor subject any person under arrest to any form of personal violence, *738intimidation, indignity or threats ior the purpose of extorting from such person incriminating statements or a confession.’
“If you find from the evidence in this case that any officer having custody of either defendant in this case denied him communication with his friends or an attorney in violation of the above statute, then I instruct you that you may consider such denial in connection with the voluntariness of any' statement made.” Instruction No. 12.
In Spano v. New York, supra, the supreme court of the United States expressed “. . . the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves. ...” This view was reiterated most recently in Blackburn v. Alabama, 361 U. S. 199, 4 L. Ed. (2d) 242, 80 S. Ct. 274.
Denning, Freedom Under the Law (1949), chapter 1, p. 3, 26, observed: “It is just as important that the police should be honest and fair in all their dealings as that judges should be.”
Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. (2d) 1081, 81 S. Ct. 1684 (June 19, 1961), decided that the exclusionary rule of Weeks v. United States, 232 U. S. 383, 58 L. Ed. 652, 34 S. Ct. 341, was applicable to criminal prosecutions in state courts.
State v. Miles, 29 Wn. (2d) 921, 190 P. (2d) 740; Tacoma v. Houston, 27 Wn. (2d) 215, 177 P. (2d) 886; State v. Gunkel, 188 Wash. 528, 63 P. (2d) 376; State v. Knudsen, 154 Wash. 87, 280 Pac. 922.
“By statute of the State of Washington, it is provided:
“ ‘The confession of a defendant made under inducement, with all the circumstances, may be given as evidence against him, except when made under the influence of fear produced by threats; but a confession made under inducement is not sufficient to warrant a conviction without corroborating testimony.’
“You are further instructed that a ‘voluntary confession’ is taken to mean a confession made of the free will and accord of the defendant without over-persuasion, and without coercion induced by fear or threat of harm and without inducement by promising or holding out hope of reward or immunity; or, stated in another way, a confession which is forced or extorted in any manner by over-persuasion, promise or threats is an involuntary confession.
“The same rule applies to oral admissions made by one accused of crime.
“If you believe from the evidence in this case beyond a reasonable doubt that either defendant made any confession or oral admission, then you are instructed to disregard any such confession or admission unless you further find from the evidence beyond a reasonable doubt that such confession or admission, if any, was voluntarily made.
“And in this connection, I further instruct you that a confession or admission of a defendant is not rendered involuntary because he is not at the time of making the same reminded that he was under arrest, or that he was not obliged to reply, or that his answers would be used against him, or that he was entitled to be represented by counsel.
“If you find that confessions or oral admissions were made, and were voluntarily made by the defendants, then it is your province to determine the weight and credit to be given them.” Instruction No. 11.
“While in custody and before he was taken before a magistrate, Strain asked the officers for permission to see a lawyer. He was told he would have plenty of time to see one. He was not permitted to see one. The refusal of a request to see a lawyer by a person under arrest and before he is taken before a magistrate it not, in itself, ground for denying admission of such person’s confession in evidence. Nor does it result in a denial of his fundamental rights. It is a factor to be considered by the jury in determining whether the confession was voluntary. (People v. Crooker, supra, 47 Cal. 2d 348, 352-353; Crooker v. California, supra, 357 U. S. 433 [78 S. Ct. 1287, 2 L. Ed. 2d 1448, 1453].)” People v. Grace, 166 Cal. App. (2d) 68, 332 P. (2d) 811.