(dissenting).
I dissent. I believe the admissibility of Tarnef’s statement depends upon the outcome of a hearing that should be held to decide first, if Tarnef received his Miranda warnings, and second, if so, was there a valid waiver.
The statement in question was made by Tarnef to fire investigator Timlin at the Northern Regional Correction Center. Tarnef requested this conference. Timlin took down a five page statement in longhand from notes and conversation with Tarnef at the correctional center. Tarnef signed each page of the statement.
The record does clearly demonstrate (as the majority candidly admits) 1 a direct conflict in testimony concerning whether and Miranda warnings were in fact given. Since the trial court did not rule on this conflict of testimony as required by law, the admission of the statement was error.2 However, this court is not in a position to resolve either the competing inferences or the direct factual conflict without the benefit of a decision on the issue by the trial court. Credibility is the necessary ingredient to resolve the conflict, yet we have never seen any of the witnesses nor observed their demeanor. Certainly such things as age, intelligence, education and prior criminal experience are as equally important in judging what the witnesses say as the words themselves.3 The same words can often mean different things depending upon the circumstances under which they are spoken. Thus, the hearing should first determine whether Tarnef was given the proper Miranda warnings.
I depart from the majority opinion because as a matter of law I cannot say there are no facts which would have permitted the trial court to hold that there was a valid waiver by Tarnef of his Miranda rights. I am aware that the Supreme Court in Miranda v. Arizona4 stated :
An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.
However, I feel the necessary plus element could be found on rehearing: that there may be more than simply a warning followed by a statement.
The majority upon finding no classical waiver of Tarnef’s Miranda rights at the end of his written statement saw this as evidence of the absence of an intelligent and knowing waiver. However, it appears *937to me that the last paragraph referred to in the majority opinion can as logically be inferred to support the opposite view. The paragraph states:
I have read all of the five pages of this statement and it is a true statement to the best of my knowledge, given by me to [K. J.] Timlin, without having received any threats or promises.
It is interesting to note that Tarnef accompanied Timlin and Hagar in a police car the day after making the statement to point out the places where the various events took place. Previous to the statement Hagar and Timlin had visited Tarnef on at least four previous occasions over a six month period. Perhaps the most telling single piece of evidence is that at Tar-nef’s request certain information was omitted from the statement. Taking these facts together I cannot say that the trial court on rehearing would be precluded from holding that Tarnef made a knowing and intelligent waiver of his Miranda rights.
The record on the issue of waiver is susceptible to conflicting inferences because of the focus of the legal arguments of Tarnef in the trial court. The primary emphasis was placed on the inadmissibility of the confession because of a promised immunity from prosecution, with a secondary argument based on a failure to give any Miranda warning. Nowhere does there appear the argument by Tarnef that he did not voluntarily waive his rights assuming arguendo that a Miranda warning had been given. Accordingly, there are few direct facts upon which to resolve such an issue.
Appellant is clearly entitled to a full hearing and decision on these issues in the trial court. If at the conclusion of such an evidentiary hearing it is determined that the required warning was given and that appellant waived his rights thereunder, the confession was admissible in evidence and properly considered by the jury. There would be no constitutional reason for proceeding with a new trial5 as appellant has already been tried by a jury which considered the confession and was found guilty. It would be fair to assume under the facts of this case that the conviction rested at least in part on the statement. This is acceptable so long as6 the confession is now found to be admissible.7
If, however, the trial court finds that the necessary Miranda warnings were not given, or that appellant did not waive his rights, the trial court must order a new trial where Tarnef’s statement would not be admissible.
I would remand this case for a limited hearing on the Miranda issues.
. llagar and Timlin say the warning was given and Tarnef denies that any warning was given.
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ; Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
. Cf. Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 4 L.Ed.2d 242, 249 (1960).
. Supra, 384 U.S. at 475, 86 S.Ct. at 1628, 16 B.Ed.2d at 724.
. Swenson v. Stidham, 409 U.S. 224, 93 S.Ct. 359, 34 L.Ed.2d 431, 436 (1972) ; Jackson v. Denno, supra, 378 U.S. at 394, 84 S.Ct. at 1790, 12 L.Ed.2d at 926.
. 409 U.S. at 228, 93 S.Ct. at 362, 34 L.Ed.2d at 436.
.We should not assume that the trial court will not now give appellant a hearing inconsistent with the requirements of the constitution.