I dissent.
This case shoidd be reversed on the basis of defendant’s third and fifth statement of errors, to-wit:
III
“That the Court erred in allowing the witness John O. Iversen to testify over defendant’s objection with regard to the conversation with the defendant on November 6, 1964, when the State had failed to provide *200any minute of testimony as to such a conversation.”
Y
“That the Court erred in allowing the witness John O. Iversen to testify as to conversations with the defendant on the ground that the defendant was unable to consult with an attorney prior thereto.”
I. Detective Iversen was allowed to testify concerning admissions made to him by the defendant. No hint of any such conversations between defendant 'and Detective Iversen is shown in the minutes of evidence or the bill of particulars. As to the second of the two conversations or admissions, the record indicates that this conversation was detailed in the supplemental bill of particulars and was referred to as evidence which would be produced through Detective Petersen. The fact that Detective Iversen (Detective Petersen’s testimony having been rejected on other grounds) testified to this conversation would not necessarily constitute reversible error. Notice of the substance of the testimony was given.
However, Detective Iversen testified to two conversations, two sets of admissions, when the bill of particulars and all notices of additional testimony referred to only one conversation and are entirely silent as to the other. The majority holds “We are not here concerned, however, with the correctness of this ruling except to note that prior to trial defendant knew the substance of what the State would try to prove, and the names of witnesses to be called. * * * The defendant knew what the police claimed defendant had said.” These statements are simply not supported by the record. The point of one of defendant’s major complaints is the defendant only knew one half of what the police claimed defendant had said.
The pretrial documents contained no reference whatsoever to the fact that the State would claim defendant told two materially divergent stories. We need not belabor the importance of this information. The fact that the State produced evidence that defendant told two different versions of what happened is strongly relied upon in this court by the State in urging the sufficiency of evidence to sustain conviction. Although the final arguments of counsel are not a part of the record, presumably this evidence was also strongly relied upon at trial. No hint of *201this deviation, or as the State puts it here, these “lies”, was given in the pretrial documents.
Section 780.10 is fully .set out in the majority opinion. It requires that notice be given of “the substance of what he [prosecutor] expects to prove by him [the witness] on trial”, as to all witnesses where the minutes of evidence were not presented with the indictment to the court.
We are cited a long line of cases holding that the State is not limited to the minutes and notices in the examination of its witnesses. The history of this statute indicates the paucity of lip service given to it by this court. Even before State v. Kreder (1892), 86 Iowa 25, 26, 27, 52 N.W. 658, this court refused to force the State to comply with the law in relation to this statute. But in Kreder this court recognized that the statute meant what it said:
“But the statute requires that the substance of what the state expects to prove by the witness be stated. That provision refers to the matter to which the witness is expected to testify, and not to its legal effect. If the notice in this case was sufficient, the requirement that such a notice shall state the substance of the testimony to be given is without force. The rule of interpretation, as applied to statutes, requires that effect be given to every part of them when that can be done; and as it is not only practicable, but most reasonable, to apply that rule to the statute under consideration, we must hold that the notice in question was not sufficient, and that the witnesses therein named should not have been permitted to testify against the objection of defendant.”
One of the earliest eases points up the division of the court when it failed to enforce the statute in a reasonable manner. In 1864 Justice Wright wrote in State v. Bowers, 17 Iowa 46, 50, 51:
“The law requires that the names of all the witnesses examined before the 'grand jury, shall be presented with the indictment, and filed §4785. In offering evidence in support of the indictment, the district attorney is not permitted to introduce any witness who was not examined before the grand jury, and the minutes of whose testimony was not taken by the clerk *202and presented with the indictment, unless he shall give notice, &c §4786. (Per Lowe and Cole, JJ.)
“I am instructed to announce as the opinion of a majority of the members of the court present, and deciding this case, that under these sections the State is not limited to the testimony given by the witnesses before the grand jury, but that if his name is indorsed on the indictment, and the minutes of his testimony properly presented and filed, he may be examined as to any and 'all matters within his knowledge, touching or bearing upon the prisoner’s guilt .or innocence. The argument is that the statute requiring a return of this testimony is an innovation upon the rules heretofore existing in our criminal practice, that the language refers to the witness and the presentation of the testimony given by him before the grand jury, and does not exclude anything else he may know or recollect on the subject. And this view it is insisted is supported by the very words, ‘he shall not introduce any witness,’ whereas, if the prisoner’s position is correct, the language would have been, ‘he shall not introduce any testimony, the minutes of which was not taken,’ &c. And that, as the State cannot introduce any other without notice, it may examine fully as to all matters, the witnesses thus made competent.
“Any other view it is further maintained is unwarranted by the letter of the law and would tend almost necessarily to defeat many if not all prosecutions.
“I feel bound to say for myself, however, that this view is neither conclusive nor satisfactory. It seems to me that the object of requiring the testimony to be returned with the indictment, would thus in very many instances be practically defeated.
“The defendant has a right to examine it, and to a copy of it without charge. And thus he knows not only the witnesses against him, but the substance of their testimony. But he cannot know this if a witness may, as in this ease, testify tP'matters ‘material to his conviction and of which he did not speak before the grand jury.’ I do not claim that the witness is to be confined to the words or necessarily to the same conversations, acts, or transactions referred to before the grand jury. But that if he refers to new and substantial facts, new matter, material and admitted to be necessary to the conviction, he is within the *203meaning of the law a new witness. That the witness and his testimony are the same under the statute, and that the one, no more than the other can be introduced without notice.”
Other cases took the same view. Ereder attempted to recognize the statute. Then the whole matter was reviewed in 1895, State v. Harlan, 98 Iowa 458, 460, 461, 67 N.W. 381:
“Section 4293 of the Code, which requires that the minutes of the testimony of the witnesses upon which an indictment has been found must be returned with the indictment, and the provision of section 4421, requiring notice to be given of the introduction and examination of witnesses not examined before the grand jury, are for the purpose of imparting to the accused such knowledge of the evidence which will be given against him as will enable him to make proper preparations to contradict or explain it. State v. Rainsbarger, 74 Iowa 196 (37 N.W. Rep. 153). Notwithstanding this is the purpose and object of the statute, it was long since determined by this court that the witnesses who were examined before the grand jury, and the minutes of whose testimony were returned with the indictment, may be examined on other questions of fact in the case than those stated in the minutes of the testimony returned with the indictment. State v. Bowers, 17 Iowa 46; State v. Ostrander, 18 Iowa 435; State v. McCoy, 20 Iowa 262. And the same rule has been adopted with reference to the notice given of the examination of witnesses who were not examined before the grand jury; that is, the examination is not to be limited to the matters stated in the notice. State v. Craig, 78 Iowa 637 (43 N.W. Rep. 462). And see State v. Yetzer, 97 Iowa 423 (66 N.W. Rep. 737). It was held in the case of State v. Kreder, 86 Iowa 25 (52 N.W. Rep. 658), that a notice of the introduction of witnesses, which stated that it was expected to prove by said witnesses 'that the nuisance has been kept and maintained by you, as charged in the indictment,’ did not state facts sufficient to entitle the state to examine the witnesses on the trial of the case. In that case there was not even an attempt to give the defendant notice of time, place or circumstance which would enable him to discover what was expected to be proven by the witnesses. The notice in this case is somewhat different. It surely was not necessary to state the time or place of the arrest. *204And the attention of the defendant was directed to what he did and said on that occasion. It is true, that the language and character of the acts are not set out in the notice. But there is sufficient to direct the defendant’s attention to them, and to enable him to produce other witnesses, if any, who were present, to explain his acts and what he said, or to contradict the witnesses for the state, if they did not testify truthfully. As is said in State v. Bainsbarger, supra: ‘If the state was required to produce evidence conforming in every important particular to the notice, the statute would defeat justice when a noncompliance in unimportant matters would not prejudice the rights of the accusedIn view of the construction which this court apparently was compelled to give to both of the sections of the Code herein considered, in order that the administration of justice might be maintained and not defeated, we think the district court did not err in overruling the objection to the examination of the witnesses.” (Emphasis supplied.)
The foregoing quotation is a reasonable review of the court’s attitude to that time. It consigns State v. Kreder, supra, to limbo without overruling it. It recognizes the purpose and object of the statute but refuses to enforce it “in order that the administration of justice might be maintained and not defeated.” Here administration of justice seems to> be equated with record of convictions. Notice need not be given as to important matters lest failure to give notice in unimportant matters “defeat justice.”
Subsequent cases have continued what amounts to judicial repeal of a legislative enactment to the point that such objections are brushed aside almost casually in the manner of State v. Powell and State v. Harding, both noted in the majority opinion.
A review of the cases on this subject indicates persistent efforts by defense counsel to secure their client’s statutory rights. Such review also reveals an equally persistent and constant refusal by this court to 'afford defendants the rights accorded to them by the legislature.
Admission of testimony, the substance of which was not fairly alluded to in the pretrial documents, violates the statute; just as the admission of evidence secured by illegal search and *205seizure violates the constitution. The difference is that the latter protection is afforded by the Federal Constitution and the United States Supreme Court could, and finally did, do something about it. Here the right (and protection) is afforded by the legislature of the State of Iowa. If the right is to be recognized and given a meaning, this court must recognize its own responsibility to follow a constitutionally valid statute. Notice in minute detail is not necessary, but the substance is required. This was Justice Wright’s point in 1864. His view was correct then and it is correct now.
We function under an adversary system. Failure to abide by procedural rules reasonably promulgated by statute can only mar the tradition of fair jury trials. I would follow the statute and reverse on this ground.
II. Defendant’s next objection to Detective Iversen’s testimony is that admissions were obtained while defendant was without counsel.
Detective Iversen testified he advised defendant of his constitutional right to a lawyer and his right to remain silent at eight o’clock on November 6, 1964. Later on cross-examination he refers to that conversation as having occurred in the morning. He further testified: “I think he did know something about an attorney, and if I’m not mistaken, I think he mentioned about Mr. Kelly, because at that time when this other deal — I think the subject had Mr. Kelly at that time he was apprehended with another party.” * * *
“Q. * * * Do you recall whether or not the defendant stated to you on that morning that he didn’t have any money to employ counsel? A. Just 'as I say, he possibly could have said it.”
Defendant on voir dire examination testified: “I recall a conversation with Detective Sergeant John Iversen on or about November 6, 1964, in the Davenport Police Department. At that time I recall Detective Iversen told me I had a right to consult with counsel before making ¡any statement to him. He asked me if I wanted to call an attorney, and I told him it wouldn’t do no good for me to call one because I didn’t know none because I was new around this neighborhood and that I didn’t have enough money to even hire one. I don’t remember *206whether Detective Iversen made any response to me at that time with regard to an attorney. I had maybe five, six, seven dollars, something like that at that time. Neither Detective Iversen or anyone else told me that they could secure an attorney for me to consult with at that time. I did not think at that time that I could have secured the services of an attorney. If I eould have, I would have liked to talk to 'an attorney at that time.”
Defendant was returned to Davenport, Iowa, sometime on November 6, 1964. Although the hour of his return does not appear, the record fairly indicates he arrived sometime before 8 a.m. lie signed a two-page, single-space statement at 6 p.m., November 6. Between times he was interrogated by both Detective Petersen and Detective Iversen. The statement was signed in the presence of Officer Charles Wright and Detective Richard Fee. The account of Detective Iversen indicates extended statements, if not interrogation.
No reason is advanced for failure to take this prisoner before a magistrate without unnecessary delay upon his return to Davenport. The crime was committed on October 31; defendant was apprehended in Kentucky on November 3; returned to Davenport sometime before 8 a.m. November 6; defendant was not taken before a magistrate until November 7. Preliminary stages of the investigation had passed. Iowa Code provides:
“757.2 If the offense stated in the warrant be a felony, the officer making the arrest must take the defendant before the magistrate who issued it at the place mentioned in the command thereof, or, in the event of his absence or inability to act, before the nearest or most accessible magistrate in the county in which it was issued.”
“757.7 In all cases the defendant, when arrested, must be taken before the magistrate or clerk without unnecessary delay, and the officer must at the same time deliver to the magistrate or clerk the warrant, with his return thereon indorsed and subscribed by him 'and with his official title.”
These sections provide important safeguards to the citizenry and must be observed. See McNabb v. United States, 318 U. S. 332, 63 S. Ct. 608, 87 L. Ed. 819, for interpretation of like Federal Rules. Had the officers themselves complied with the *207law, the situation which developed over the defendant’s right to an attorney and the officer’s inability to furnish him with an attorney would not have occurred.
Upon being taken before a magistrate the defendant would, then and there have had counsel appointed for him under the doctrines laid down in Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed.2d 799, 93 A. L. R.2d 733; White v. Maryland, 373 U. S. 59, 83 S. Ct. 1050, 10 L. Ed.2d 193; Hamilton v. Alabama, 368 U. S. 52, 82 S. Ct. 157, 7 L. Ed.2d 114.
The majority quotes defendant’s brief that “The defense admits that its proposition goes further than the Iowa law on this subject and even the decisions of the United States Supreme Court.” This concession should not be accepted because it is not true as to the pronouncements of the Supreme Court of the United States. The court has a right to presume that the states will enforce their own statutory laws. If our statute had been followed and defendant had been taken before a magistrate without unnecessary delay this defendant would have had a lawyer appointed for him.
Defendant indicated to the police officer his inability to employ a lawyer. He says he. lacked knowledge that he was entitled to have a lawyer appointed for him. State’s witnesses do not dispute these facts. He did not intelligently waive his right to counsel. Clearly the stag-e of the proceedings was both critical and accusatory. Escobedo v. Illinois, 378 U. S. 478, 84 S. Ct. 1758, 12 L. Ed.2d 977.
“But it is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request. # * * The record must show, or there must be an allegation 'and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.” Carnley v. Cochran, 369 U. S. 506, 513, 82 S. Ct. 884, 889, 8 L. Ed.2d 70, 76.
“At every other stage of the proceedings at which a right to counsel attaches, the right does not depend on a request for counsel nor can it be presumed that failure to request counsel constitutes a waiver of that right. Carnley v. Cochran, 369 U. S. 506, 513, 82 S. Ct. 884, 8 L. Ed.2d 70 (1962); Uveges v. Com. *208of Pennsylvania, 335 U. S. 437, 69 S. Ct. 184, 93 L. Ed. 127 (1948); Rice v. Olson, 324 U. S. 786, 65 S. Ct. 989, 89 L. Ed. 1367 (1945); see also Commonwealth ex rel. Remeriez v. Maroney, 415 Pa. 534, 204 A.2d 446 (1964); Commonwealth ex rel. Goodfellow v. Rundle, 415 Pa. 528, 204 A.2d 446 (1964); Commonwealth ex rel. O’Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (1964).” United States ex rel. Russo v. State of New Jersey, 351 F.2d 429, 437 (1965); see annotations at 5 A. L. R.3d 1269 and at 1360.
But the majority points out that we rejected the holdings in Russo v. New Jersey, supra. While ive may have a right to do that, do we also have a right to reject the pronouncements of the Supreme Court of the United States on federal constitutional questions? What about Carnley v. Cochran (quoted in Russo, supra), to the effect that the right to counsel does not depend on a request nor can it be presumed that failure to request counsel constitutes a waiver? Do we have a right to reject that statement by the United States Supreme Court? If not, how can we say that after advising of a right to counsel, the police officer can secure admissible testimony even though he knew or should know (1) that defendant had no money to employ counsel, (2) that a magistrate would appoint counsel and, (3) that he had a legal duty to take defendant before such a magistrate without unnecessary delay?
If we still sa.y that the admissions secured in this fashion are admissible, we must be driven to the explanation that time to interrogate witness without counsel constitutes necessary delay.
Neither inability to hire counsel nor ignorance of the right to demand counsel can be used as a basis to imply a ivaiver of such right by silence and acquiescence.
“ ‘If the right is deemed sufficiently important to be a due process requirement, why is it not sufficiently important to be made available to the unwary, ignorant and inexperienced as well as to the informed, sophisticated, and professional?’ Kamisar & Choper, supra at 61. ‘Failure to insist on an intelligent waiver of the right to remain silent inevitably discriminates against the ignorant and inexperienced, who may answer questions *209without any apparent coercion simply because they believe that the police have the authority or power to make them.’ 78 Harv. L. Rev. 177, 217, 220 (1964). See also Enker & Elsen, supra at 77; 107 U. Pa. L. Rev. 286, 289 (1959).” United States ex rel. Russo v. New Jersey, supra.
The trial court, under these circumstances, should have ruled Detective Iversen’s testimony inadmissible.
IAvould reverse on assigned error V.
Justices Thornton, Mason and Bawlings join in this dissent.