concurring in result:
I agree that the judgment in each of the above numbered cases should be reversed; but.I think that the reversal should be based principally on the ground that the confessions or statements of Hammer were inadmissible, because they were obtained as a result of the persistent, continuous and prolonged interrogation of Hammer (as set out in the majority opinion), in the absence of counsel, both before and after the proceedings against him had reached the accusatory stage.
In a new trial, it is highly probable that Captain Peach, an experienced and able Chief of Police, will deny that he made any threats against the family of the accused, or any promises of favor to him. If the admissions and confessions are again sought to be allowed in evidence, it is quite probable that Hammer will again petition this Court for relief, and in the event of denial thereof, will seek a hearing in a court which may look with more favor upon his prayers.
Having reached the conclusion that each judgment should be reversed,, because of the admission of improper evidence, it is not necessary or appropriate that we decide whether the properly admitted evidence is sufficient to sustain conviction. At the new trial the evidence in the several cases may be quite different for various reasons. Each side may strengthen its or his case at that time. Consequently, the evidence is not properly before us now.
In the recent case of Cooper v. Commonwealth, (March, 1965) 205 Va. 883, 891, 140 S.E.2d 688, where the interrogation of the accused was much less extensive and rigid, we said, speaking through Mr. Justice Snead:
“It is true that Cooper was advised of his rights before he was examined and that no threats or inducements were made to him. It is also true that the record does not show that Cooper asked to consult with counsel, but the fact remains that he was not experienced in criminal procedure, his intellectual endowment was ‘at the lower *154limits of normal,’ and his ability to function under stress was ‘in a corresponding range.’ He had been indicted for a capital offense and was subjected to a lengthy examination by a skillful police investigator who was seeking to obtain an admission or confession. The interrogation was no longer investigatory; it was accusatory. It cannot be successfully denied that the defendant needed the assistance of counsel during this stage of the proceeding.”
It seems rather early to expect a change of our views.
Our determination in that case is supported by many decisions of the Supreme Court: Hamilton v. Alabama, 368 U. S. 52, 7 L. ed. 2d 114, 82 S. Ct. 157, where defendant was without counsel at the time of his arraignment; Spano v. New York, 360 U.S. 315, 3 L. ed. 2d 1265, 79 S. Ct. 1202, where there was a confession after a long and continued questioning; White v. Maryland, 373 U.S. 59, 10 L. ed. 2d 193, 83 S. Ct. 1050, where the right to counsel and a preliminary hearing were denied; Gideon v. Wainwright, 372 U. S. 335, 9 L. ed. 2d 799, 83 S. Ct. 792, where the right of an indigent defendant to counsel was upheld; Escobedo v. Illinois, 378 U. S. 478, 12 L. ed. 2d 977, 84 S. Ct. 1758, where a refusal to allow the defendant to confer with his counsel was involved; and Massiah v. United States, 377 U. S. 201, 12 L. ed. 2d 246, 84 S. Ct. 1199, where it was held that incriminating statements made by defendant under indictment, and surreptitiously overheard by a government agent, were inadmissible.
In Escobedo, the Court said, at page 488, in answer to the contention that the right to counsel should not be extended to a defendant prior to his indictment:
“This argument, of course, cuts two ways. The fact that many confessions are obtained during this period points to its critical nature as a ‘stage when legal aid and advice’ are surely needed.”
Proceeding, the Court said, at page 492:
“(T)hat when the process shifts from investigatory to accusatory— when its focus is on the accused and its purpose is to elicit a confession — our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.” (Emphasis added.)
In McLeod v. Ohio, 381 U. S. 356, 14 L. ed. 2d 682, 85 S. Ct. 1556, the Court in a per curiam decision reversed the murder conviction of an indigent defendant, who had confessed to the police *155in the absence of counsel, but who had never been represented by counsel, nor had requested the aid of counsel.
At the time the incriminating statements were made by Hammer, the interrogation was no longer investigatory. The proceedings had reached the accusatory stage. Hammer had been charged on the police blotter with fourteen felonies, and all of the cases, each naming a specific offense, had been placed on the docket of the municipal court. The interrogations were thus focused on the accused as a criminal, and the inquiries were continued without interruption for the express purpose of obtaining confessions. If Hammer ever needed counsel, he needed it at that critical period.
I would hold that the cumulative effect of Hammer’s detention practically incommunicado for more than thirty-six hours, the continuous interrogation during that period, and the lack of the aid of counsel constituted a denial of his rights under the Constitutions of Virginia and the United States.