(dissenting).
In Miranda v. Arizona, the United States Supreme Court held that when a person is taken into custody in connection with a criminal matter or is otherwise deprived of his freedom of action in any significant way by the authorities and is subject to police interrogation, then prior to any questioning
the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.1
Here Officer Tannenbaum’s warning fell short of Miranda’s standards because appellant was not advised of her right to “the presence of an attorney, either retained or appointed” at any interrogation. I am therefore of the opinion that admission into evidence of the statement which was obtained from appellant was erroneous.2 I am of the further view that the superior court’s ruling cannot be characterized as harmless error for I cannot find, beyond a reasonable doubt, that admission of this statement did not contribute to the court’s determination of guilt.3 I would therefore set aside the *479superior court’s affirmance of the judgment and commitment which was entered in the district court with directions to remand to the district court for a new trial.
In regard to another facet of the majority’s opinion, I find that I cannot agree with the court’s conclusion that appellant’s right of confrontation was infringed. I am of the opinion that Officer Tannenbaum’s testimony as to what Potter said during the telephone conversation with appellant was not hearsay and, therefore, no question of constitutional right of confrontation is involved.4
In regard to this question, Professor Wigmore states:
If, therefore, an extrajudicial utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the Hearsay rule does not apply. * * *
* * * The Hearsay rule excludes extrajudicial utterances only when of-iered for a special purpose, namely, as assertions to evidence the truth of the matter asserted,5
In Watson v. State,6 we adopted this view. There we said:
Evidence of a statement made other than by a witness who is testifying is excluded as hearsay only when it is offered to establish the truth of the fact stated. Where it is offered without reference to its truth, but for some other relevant purpose, then the hearsay rule does not apply.
The evidentiary rule which we adopted in Watson has been followed in many jurisdictions.7 In the case at bar, the truth of Potter’s extrajudicial statements is irrelevant. What is relevant and material is the fact that Potter made these extrajudicial utterances in the course of the telephone conversation with appellant. Officer Tannenbaum’s testimony as to Pot*480ter’s utterances did not violate the hearsay rule since Potter’s portion of the conversation is receivable without reference to the truth of the matter asserted.8
. 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706-707 (1966). In several subsequent points in their opinion, the United States Supreme Court reiterated this requirement using the following language: “not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.” 384 U.S. 436, at 470, 86 S.Ct. 1602, at 1626. 16 L.Ed.2d 694, at 721; “that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” 384 U.S. 436, at 479, 86 S.Ct. 1602, at 1630. 16 L.Ed.2d 694, at 726.
. Montoya v. United States, 392 F.2d 731, 735 (5th Cir. 1968) ; Windsor v. United States, 389 F.2d 530, 533 (5th Cir. 1968) ; Fendley v. United States, 384 F.2d 923, 923-924 (5th Cir. 1967); Brooks v. State, Del., 229 A.2d 833, 835 (1967); Woods v. State, 211 So.2d 248, 249-250 (Fla.App.1968); Thomas v. State, 3 Md. App. 101, 238 A.2d 558, 561 (1968) ; Robinson v. State, 1 Md.App. 522, 231 A. 2d 920, 923 (1967).
.Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705, 710-711 (1967).
Neither Thessen v. State, 454 P.2d 341 (Alaska, May 12,1969); Nicholi v. State, 451 P.2d 351 (Alaska 1969) ; nor Soolook v. State, 447 P.2d 55 (Alaska 1968), involved the precise issue which is presented by the ease at bar. In Nieholi, counsel was in fact present during the interrogation ; in Soolook, the accused was advised of his right to have an attorney present; and in Thessen, this question was not raised (6»f see note 7, at 7 of the opinion).
. Concerning the constitutional right of confrontation and its relation to the Hearsay rule, Professor Wigmore states:
The rule sanctioned by the Constitution is the Hearsay rule as to cross-examination, with all the exceptions that may legitimately be found, developed, or created therein.
The net result, then, under the constitutional rule, is that, so far as testimony is required under the Hearsay rule to he taken infra-judicially, it shall be taken in a certain way, namely, subject to cross-examination, — not secretly or ‘ex parte’ away from the accused. The Constitution does not prescribe what kinds of testimonial statements (dying declarations, or the like) shall be given infra-judicially, — this depends on the law of Evidence * * *.
Y J. Wigmore, Evidence § 1397, at 131 (3d ed.1940).
. VI J. Wigmore, Evidence § 1766, at 177-78 (3d ed.1940).
. 387 P.2d 289, 293 (Alaska 1963).
. United States v. Markis, 352 F.2d 860, 863-864 (2d Cir. 1965), vacated, 387 U. S. 425, 87 S.Ct. 1709, 18 L.Ed.2d 864 (1966); Greenblatt v. Munro, 161 Cal. App.2d 596, 326 P.2d 929, 932-933 (1958); People v. Henry, 86 Cal.App.2d 785, 195 P.2d 478, 480-481 (1948) ; Cour-monwealth v. McGrath, 351 Mass. 534, 222 N.E.2d 774 (1967). In the Markis case, Judge Friendly wrote at 863-864 of 352 F.2d:
Markis claims it was error to admit Ripa’s testimony as to Mento’s placing of bets by telephone in the absence of identification of Markis’ voice as that on the receiving end. It is plain that Ripa could not be allowed to testify as to what Mento said the receiver said; Mentó alone could do that. See Van Riper v. United States, 13 F.2d 961, 968 (2 Cir.), cert. denied [Ackerson v. United States] 273 U.S. 702, 47 S.Ct. 102, 71 L.Ed. 848 (1926); United States v. Benjamin, 328 F.2d 854, 861 (2 Cir.), cert. denied, 377 U.S. 953, 84 S.Ct. 1631, 12 L.Ed.2d 497 (1964). But Mento’s dialing of 336-0254 and his placing of bets, including language used in doing so, were not declarations introduced for their truth, and the hearsay rule thus has no application to Ripa’s testimony relating to these events. See United States v. Press, 336 F.2d 1003, 1011-1012 (2 Cir.), cert. denied, 379 U.S. 965, 85 S.Ct. 658, 13 L.Ed.2d 559 (1964); United States v. Ross, 321 F.2d 61, 68-69 (2 Cir.), cert. denied, 375 U.S. 894, 84 S.Ct. 170, 11 L.Ed.2d 123 (1963) ; McCormick, Evidence §§ 225, 228 (1954).
. In Greenblatt v. Munro, 161 Cal.App.2d 596, 326 P.2d 929, 933 (1958), the court said:
In the instant case the statements of the bartender and female employees were not introduced for truth of the contents but only to show what was said, for what was said is part of the violation itself. It made no difference whether the female employees wanted the beverages or not as long as they did ask the witness to purchase the beverages. As the violation is the solicitation, such can only be accomplished by words.