dissenting.
I do not agree that the questioned evidence was nonprejudieial. The reason the state offered the evidence was to help convict the defendant. It is not unlikely that the proof that the defendant had been in the building, when embellished by his statement to the police that he had never been in the building, satisfied the jury that the defendant was the burglar.
The more difficult question, in my opinion, is whether the exclusionary rule of the Neely case ought to apply to interrogation of the kind involved in the case at bar. The majority assumes that the Fifth and Sixth Amendment rights as defined in the Neely case were available to this defendant. I see no reason, then, to evade that decision by subtle distinctions. The defendant is entitled to a new trial in which the questioned evidence is excluded. As in most of these cases, ■the difficulty could be avoided by promptly taking an arrested person before a magistrate. ORS 133.550.
Lusk, J., joins in this dissent.