(dissenting) — The test laid down by the United States Supreme Court in its most recent decision on the subject of the admissibility of confessions (Culombe v. Connecticut, 367 U. S. 568, 6 L. Ed. (2d) 1037, 81 S. Ct. 1860) is as follows:
*744“ . . . The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Rogers v. Richmond, 365 U. S. 534. The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession.”
The record in this case, viewed as a whole, convinces me that the confession of appellant was involuntary and should not have been admitted into evidence because not only was an arrested man denied the right to call an attorney or his wife (in clear violation of RCW 9.33.020(5), set out in the majority opinion), but the officers having his custody made it clear to him that they would continue to hold him incommunicado until he “co-operated” by signing a statement admitting his guilt. His requests for permission to contact his wife were repeatedly denied. His wife was also prohibited from seeing him or talking with him on the telephone during a period of about a week after his arrest. All of the above facts were undisputed at the trial.
In this case the state has admitted facts which, as a matter of law, make the confession involuntary and inadmissible if that confession is a result of those facts. Unless there is evidence to the contrary, a confession arising out of such coercive circumstances must be held to be a result of those circumstances, and, hence, involuntary.
On a new trial the state, of course, is not precluded from attempting to show that the confession was, in fact, voluntary. See Turner v. Pennsylvania, 338 U. S. 62, 93 L. Ed. 1810, 69 S. Ct. 1352. However, as the record now stands, the burden of proof is upon the state, and that burden is a heavy one, for the state has to show that the confession would have been made even if appellant had not been prevented from contacting “friends or an attorney” (i.e., even if the officers had not violated the statute). No evi*745dence was offered at the first trial which would tend to prove that the confession was not a result of the circumstances described above. Therefore, there was no issue of fact for the jury to determine, and the trial judge erred as a matter of law in admitting the confession into evidence and submitting the issue of voluntariness to the jury.
I would reverse the judgment and sentence and remand the case for a new trial, wherein, if the confession were again offered, in my opinion, it should be dealt with in accordance with Rule of Pleading, Practice and Procedure 101.20W, RCW Vol. 0, as last amended, effective January 2, 1961.
November 8, 1961. Petition for rehearing denied.