(concurring in the result)—I concur in the affirmance of the judgment but for entirely different reasons than given by the court.
Appellant was charged with first-degree murder by a complaint filed in the justice court on March 18, 1960, whereupon a warrant for his arrest issued. He surrendered to the sheriff on Sunday, March 20, 1960. While appellant was without funds and did not know any lawyer, nevertheless, he asked for a lawyer on the way to the jail in the sheriff’s custody. Upon arrival, he again told the sheriff that he wanted to consult a lawyer before he discussed the case. Nevertheless, the sheriff continued his interrogation until the confession was obtained without honoring Self’s request for counsel. This was two days after he had been charged with first-degree murder.
Upon trial, however, appellant voluntarily took the witness stand and testified to all of the material facts which he had related to the sheriff before trial. Thus the jury had from Self under oath all of the relevant facts of his prior extra-judicial confession.
There is no reason to review the evidence because no claim is made that the evidence is insufficient to justify the verdict.
Under the due process provision of the fourteenth amendment to the federal constitution,3 the appellant claims that a defendant charged with a crime has the right to consult a lawyer prior to interrogation. Such is the question pre*82sented, but all of the cases cited by the court, except Spano v. New York, 360 U. S. 315, 3 L. Ed. (2d) 1265, 79 S. Ct. 1202, deal exclusively with testimonial compulsion. The voluntariness of the confession or testimonial compulsion does not arise upon the present appeal.4
Cicenia v. LaGay, 357 U. S. 504, 2 L. Ed. (2d) 1523, 78 S. Ct. 1297, and Crooker v. California, 357 U. S. 433, 2 L. Ed. (2d) 1448, 78 S. Ct. 1287, decide that the due process clause of the Fourteenth Amendment does not guarantee an arrested suspect an absolute right to consult a lawyer while being questioned by the police before a charge is filed.
Judge Desmond, speaking for himself and Judges Fuld and Van Voorhis in People v. Spano, 4 N. Y. (2d) 256, 150 N. E. (2d) 226, 173 N. Y. S. (2d) 793, said that, because of counsel’s absence, due process was denied by the admission in evidence of a confession obtained after indictment.5 *83But the question has not been decided by the nation’s highest judicial tribunal, although in Spano v. New York, supra.6 four of its members were of the view that the admission in evidence of such a confession denied due process. Nevertheless, the court based its reversal of Spano’s conviction solely on the ground of testimonial compulsion.
Since the Supreme Court of the United States decided Spano v. New York, supra, the highest court of the state of New York held in two cases that, because of the absence of counsel, due process was denied by the admission in evidence of a confession made after indictment.7 Both cases present the issue clearly, for in neither is there a suggestion of either physical or psychological coercion. In the first, People v. DiBiasi, 7 N. Y. (2d) 544, 166 N. E. (2d) 825, 200 N. Y. S. (2d) 21, the charge was murder in the *84first degree. Many commentators considered that the decision applied only to capital offenses,8 but more recently in People v. Waterman, 9 N. Y. (2d) 561, 216 N. Y. S. (2d) 70, 74,9 a conviction for grand larceny and assault was reversed for the same reason.
Had Self not taken the stand but stood upon his objection to the admission of the confession, I should favor reversal upon the authority of the two recent decisions of the highest court of New York; but this important question of jurisprudence need not now be decided because any invasion of the appellant’s constitutional rights was waived when he voluntarily took the stand and testified to all of the facts related in his confession to the sheriff. Wheeler v. United States, 165 F. (2d) 225; Huffstetler v. Texas, 168 Tex. Crim. 16, 322 S. W. (2d) 624; King v. State, 156 Fla. 817, 24 So. (2d) 573; People v. Combes, 14 Cal. Reptr. 4, 363 P. (2d) 4; Ross v. State, 158 Miss. 827, 131 So. 367; Weatherford v. State, 164 Miss. 888, 143 So. 853; Moya v. People, 88 Colo. 139, 293 Pac. 335; Hammonds v. Commonwealth, 303 Ky. 680, 199 S. W. (2d) 133; State v. Fouquette, 67 Nev. 505, 221 P. (2d) 404; State v. Ussery, 357 Mo. 414, 208 S. W. (2d) 245; 5 Tex. Jur. (2d) 704, § 446.
December 21, 1961. Petition for rehearing denied.
Cf. Wash. Const. Art. 1, § 22 (amendment 10); RCW 10.01.110; State v. Hartwig, 36 Wn. (2d) 598, 219 P. (2d) 564.
For a review of the cases respecting confessions obtained under testimonial compulsion, see my dissent in State v. Haynes, 58 Wn. (2d) 716, 727, 364 P. (2d) 935.
“. . . Some violations of right are too fundamental to be excused by a jury of laymen. Directly and frankly violated here were two such rights: the right to have the advice of a lawyer at every stage of a court proceeding, and the right not to be forced to testify against oneself during such a proceeding.
“Our statutes and decisions (Code Crim. Pro., §§ 308, 699; People v. McLaughlin, 291 N. Y. 480; People v. Marincic, 2 N. Y. 2d 181) endlessly state and repeat the guarantee of every defendant’s right to have the effective services of counsel at every stage of every criminal cause. But what use are these to a prisoner who, held awaiting trial, is questioned in the absence of his counsel, and contrary to counsel’s express directions, until he confesses? Before a magistrate or a coroner or other judicial officer a defendant may under no circumstances be forced to make admissions of his guilt (see People v. McMahon, 15 N. Y. 384, supra; People v. Mondon, 103 N. Y. 211, supra). Yet the same defendant in the same criminal cause held under the process of the same court, can (it is now decided) be subjected to secret midnight questioning out of reach of any lawyer, till he confesses. Despite the People v. Defore rule (242 N. Y. 13) this is a violation of the right against self-incrimination since the defendant is compelled in the course of a criminal prosecution to incriminate himself by his own utterances (People ex rel. Kenny v. Adams, 292 N. Y. 65, 70 et seq.). Surely this is the use by the State of another method of obtaining evidence which ‘shocks the conscience’, offends accepted ‘canons of decency and fairness’ and so invades the due process clause of the *83Fourteenth Amendment (Malinski v. New York, 324 U. S. 401, 412-418; Rochin v. California, 342 U. S. 165, 171, 172).” People v. Spano, 4 N. Y. (2d) 256, 266, 150 N. E. (2d) 226, 173 N. Y. S. (2d) 793, dissenting opinion per Desmond, J.
“We do not have here mere suspects who are being secretly interrogated by the police as in Crooker v. California, supra, nor witnesses who are being questioned in secret administrative or judicial proceedings as in In re Groban, 352 U. S. 330, and Anonymous Nos. 6 & 7 v. Baker, ante, p. 287. This is a case of an accused, who is scheduled to be tried by a judge and jury, being tried in a preliminary way by the police. This is a kangaroo court procedure whereby the police produce the vital evidence in the form of a confession which is useful or necessary to obtain a conviction. They in effect deny him effective representation by counsel. This seems to me to be a flagrant violation of the principle announced in Powell v. Alabama, supra, that the right of counsel extends to the preparation for trial, as well as to the trial itself. ...” Spano v. New York, 360 U. S. 315, 325, 3 L. Ed. (2d) 1265, 79 S. Ct. 1202, concurring opinion per Douglas, J.
“Let it be emphasized at the outset that this is not a case where the police were questioning a suspect in the course of investigating an unsolved crime. See Crooker v. California, 357 U. S. 433; Cicenia v. Lagay, 357 U. S. 504. When the petitioner surrendered to the New York authorities he was under indictment for first degree murder.” Spano v. New York, supra, concurring opinion per Stewart, J.
. . . Since, in addition, the express state constitutional and statutory provisions on right to counsel are not broad enough to cover the instant case, it is apparent that the substantial constitutional guarantee relied on by the court in reaching its decision was a due process right to counsel after indictment. . . . ” 61 Colum. L. Rev. 744, 748.
61 Colum. L. Rev. 744; 35 N. Y. U. L. Rev. 1594; 35 St. John’s L. Rev. 154; 46 Va. L. Rev. 1468; 29 Fordham L. Rev. 393; 27 Brooklyn L. Rev. 24, 51; 9 Kan. L. Rev. 464.
“. . . Since the finding of the indictment presumably imports that the People have legally sufficient evidence of the defendant’s guilt of the crime charged (Code Crim. Pro., § 251), the necessities of appropriate police investigation ‘to solve a crime, or even to absolve a suspect’ cannot be urged as justification for any subsequent questioning of the defendant. See Spano v. New York, 360 U. S. 315, 323, 79 S. Ct. 1202, 1207, supra. Any secret interrogation of the defendant, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime.” People v. Waterman, 9 N. Y. (2d) 561, 216 N. Y. S. (2d) 70, 74.