dissenting.
The critical facts are as follows: A police officer and, later, a magistrate informed the defendant of his right to remain silent and of his right to counsel. The defendant asked the magistrate to provide court-appointed counsel and the magistrate told the defendant that this would be done. Immediately after the appearance in the magistrate’s court, before the magis*381trate had an opportunity to appoint counsel or before appointed counsel could advise the defendant, the police resumed their interrogation and obtained a confession from the defendant.
The majority opinion affirms the trial court’s admission of the defendant’s statement for the reason that the statement was made “with full knowledge of his constitutional rights.” In my opinion this does not answer defendant’s contention. The defendant contends that after he was informed of his right to counsel and thereupon requested that counsel be appointed, any answers he gave to further interrogation carried on before the defendant has the benefit of counsel are inadmissible.
The defendant being advised of his right to counsel is only the first step. We have consistently stated that in addition to advising a defendant of his constitutional rights, “Further, the record must show that these rights were understandingly waived by the defendant before a confession obtained by interrogation may be used in court.” State v. Ervin, 241 Or 475, 406 P2d 901, 902 (1965). To the same effect see State v. Neely, 239 Or 487, 395 P2d 557, 398 P2d 482 (1965); State v. Keller, 240 Or 442, 402 P2d 521, 525 (1965).
Here, the record conclusively shows that defendant did not waive his right to counsel. He chose to exercise such right and asked for a court-appointed attorney. The police obtained the statement after the defendant had clearly evidenced his nonwaiver of his constitutional right to counsel and before the defendant was reasonably able to obtain the assistance of counsel.
For some time this court has held that a defendant at trial has the right to the assistance of counsel. If *382the trial court informed the defendant of this right, the defendant requested the appointment of counsel, and the trial court, however, went ahead and tried the defendant without counsel, I am certain this court would not affirm .such a conviction. In my opinion the situation at trial and during pretrial interrogation is identical.
Our concern with the pr oblem of whether and when an accused must be advised of his constitutional rights may have diverted our attention from the main thrust of Escobedo v. Illinois, 378 US 478, 491, 84 S Ct 1758, 12 L ed2d 977 (1964). It was there held that the defendant had “requested and been denied an opportunity to consult with his lawyer” and, theref ore, his statements made to the interrogating officers were inadmissible.
The only differences in the facts here are that Rosenburger was indigent and had to consult with a court-appointed attorney and the police did not physically deny counsel access. The police were able to successfully complete their interrogation before the defendant was able to secure the assistance of counsel.
In Massiah v. United States, 377 US 201, 206, 84 S Ct 1199, 12 L ed2d 246 (1964), the court stated: “We hold that the petitioner was denied the basic protections of that guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” The differences from the present case are that in Massiah the statements were obtained after indictment and the defendant had already secured and retained an attorney. I doubt if these differences make the present statement admissible.
*383The California court has just decided the identical issue presented here. In People v. Stockman, — Cal2d —, 47 Cal Rptr 365, 407 P2d 277, 281 (1965), the court stated:
“In the instant case Cathcart asked for an attorney bef ore making a statement (he was then told that the court would appoint him one). The record also shows Stockman actually contacted an attorney by telephone (who was unable to get to him before he confessed). But the persistence of the police in continuing to interrogate the accused after such requests were made known to them clearly violated the constitutional rights of these appellants. * *
I would reverse.
Sloan, J., joins in this dissent.