(dissenting) — The defendant was convicted of murder in the first degree and has appealed. The facts are not seriously in dispute. Resolving any such dispute against the defendant still leaves serious legal issues. The correct resolution of these issues is of signal importance to the administration of justice in this state. The conviction that these important issues have been incorrectly resolved by the majority compels this dissent.
On the' night of June 30, 1965, defendant and one Gary Farrar went to the home of Tom Page for the purpose of extracting money from him. Farrar armed himself with a tire iron and rapped on the door. Page came down in his *812nightclothes and inquired who was there. Farrar answered, the police. When the door was slightly opened, Farrar forced his way in and struck Page on the head with the iron, knocking him down. He then kicked the man repeatedly in an attempt to learn where Page kept his money. The culprits found $20 and, taking two rings, left. Page, bleeding profusely, was left half-sitting, half-lying on the floor.
The next day Farrar returned to Page’s home, evidently for more money. He reported to the defendant later that he had found Page dead in bed. The two then used Page’s automobile to dispose of the body. It was buried in a crude grave out in a wooded section of Pierce County.6
During August 1965, defendant was lodged in the Tacoma city jail on a charge, unconnected with this case, of burglary. He was represented by assigned counsel in that case. At the same time, in another cell, was one James Maillard. He was also charged with a burglary and represented by assigned counsel.
Early in August, the police were in the process of investigating Page’s disappearance. They had been advised about his disappearance and had found his home spattered with blood. They suspected foul play. The defendant was then questioned by them about certain rumors concerning threats reportedly made by Farrar to rob Page. Defendant denied any knowledge.
On September 24, Maillard, on advice of his counsel, relayed to the police not merely the information that Drew admitted to knowledge of the location of Page’s grave, but that Drew admitted to having helped dispose of the body. At the suggestion of a lieutenant of detectives, a very special cell was prepared in the Tacoma city jail; it was “bugged”. A microphone was placed over a ventilator to enable the police to monitor and record all conversations taking place in the cell. Then, Maillard and defendant were *813placed together in this single cell, the bugged cell.7 The record does not disclose that defendant knew of this bugging. Apparently his attorney was equally unaware.8 As noted by the majority, whether the police informant Mail-lard was instructed as to the nature of his mission is a question not answered by the record. It would be difficult under the circumstances, however, to believe that Maillard (and his counsel) did not understand the significance of being placed in the same cell with the man against whom he had informed. Thereafter, these two engaged in conversations, as cellmates will. At least 80 hours of their conversations were recorded.9
After 5 days, apparently enough information had been obtained because the police put aside their electronic devices and resorted to a new tack. First, they requested the attorney handling the Page estate to offer, publicly, a reward of $1,000 for information about Tom Page. They intended to release the defendant in the hope that he would rise to this attractive bait.
Shortly after the reward was advertised (in fact, the day before the defendant was to be tried for burglary) that action against defendant was dismissed and he was sent home, ostensibly a free man.10 At the pre-trial hearing of this case, the deputy prosecuting attorney admitted:
If the information we had was true, it was necessary to find the body of Tom Page and Frank Drew was the only person who knew of the burial site. It was hoped he would be released and lead us to this location. It was *814necessary to let him believe he was not a suspect. . . . We purposely did not talk with him because we wanted to let him believe he was not a suspect in the death of Tom Page. (Italics mine.)
The efforts of the police were rewarded the next day when Drew, in hope of obtaining the reward, led them to the spot where the body of Tom Page was hidden. The body was removed from the crude grave and defendant was returned to the city jail where he was booked at 2:30 p.m. There he was placed in silent seclusion for the next 7 hours. At 9:30 p.m., two experienced homicide detectives arrived to interrogate him. They had with them a tape recorder and set it working. For the next hour and 50 minutes, they continued their interrogation. They testified that at the beginning and several times during this period, defendant was advised of his right to counsel, to remain silent, and the fact that anything he said could be used against him.11 The majority relates that “According to the detectives, Drew stated that he realized he had those rights, and he proceeded to tell his story.” Unnoted was the defendant’s testimony:
Q. Did they advise you that before you made any confession you should have an attorney present? A. Not at that time. At first, when they first questioned me they did. At that time, they said on that — I told him, I have nothing to say, I want to go up to my cell, and I want an attorney. I started to get out of my chair. They told me to sit down, they wouldn’t let me leave. Q. After that didn’t— did they tell you you had the right to have an attorney? A. Not after that, no.
Thereafter, for at least 1 hour, defendant resisted their questioning, insisting that Farrar had merely pointed out the grave site to him. Then, late at night, the two detectives, having during this hour softened up the solitary defendant, played their trump-card, the tapes of the bugged *815conversations.12 The defendant testified at the pre-trial hearing:
They said they had tapes from Jim and I being in the same cell together, and they brought one of them out and played part of it, and they said they had also a confession from Jim stating that they knew everything about Jerry Farrar and I being involved in this, and they said there was no sense trying to hide it, that they had everything they needed.
At this point, defendant told his interrogators that he had not assaulted Page, but had participated in the robbery, and that on being later told of Page’s death, had helped dispose of the body. He was then questioned for another 50 minutes until he had revealed enough to satisfy the detectives.
Early the next morning, defendant was taken before a committing magistrate (a justice of the peace). The justice, by way of advising him of his constitutional rights, handed the defendant a form which purported to set out those rights.13 That form in part recited:
[R] epresentation by a lawyer. We have ño authority to appoint one or pay for his services. If you are to have one, it must he on your own initiative and at your expense. (Italics mine.)
The charge, which was then read to defendant, accused him of having actually beaten Page.14 Drew, in understandable response, made a statement to the justice that Farrar had done the actual beating, thus further incriminating himself.
Following this appearance, Drew was taken to a secretary. He was there required, after having been advised of his rights, to make what was in effect his third confession. The statement was typed and signed. It was later to be *816admitted into evidence at his trial over his motion to suppress.
At the trial, the burden was on the state to prove that Page had died as a result of the beating administered by Farrar. The state used both the confession and other evidence in an attempt to establish the necessary causal connection. The evidence most heavily relied on was the testimony of a pathologist. The majority cites two portions of his testimony in support of their conclusion that from the testimony a jury could conclude that “the reasonable medical probability was that Mr. Page died of a heart attack precipitated by shock produced by the beating he received.
The first portion of the pathologist’s testimony is interpreted by the majority as the doctor’s “response” to a hypothetical. The testimony in fact proceeded as follows:
Q. [Hypothetical question, alluded to by majority, is put] A. Well, I should state that from the results of my autopsy, I found no direct cause of death. Q. There were no other causes of death? A. This is true. However .... [And then, at this point, the witness recites what the majority interpret as his response to the hypothetical.] (Italics mine.)
The majority’s second supportive quotation of testimony was elicited on redirect, and although it comes later in the testimony, it refers to what the doctor thought about a certain blood clot before he did his microscopic work on it. The state specifically asked him to give his opinion at the time just after he had performed the post mortem. With regard to his conclusion after he had done the microscopic work, he testified:
I found the blood clot which I was uncertain as to whether it was of such a nature that it would have been there before death or after death. In order to confirm this, I removed this part of this artery, and did microscopic work with it. There is — my results of the microscopic work are just as inconclusive as the results of looking at it at the time of the autopsy. The material that formed the clot within this artery was so decomposed *817that I couldn’t be sure whether it had occurred before death or after death.
With regard to that clot, the doctor’s further testimony is of such importance that it is difficult to understand how it escaped the attention of the majority:
Q. Did that lead you to conclude, doctor, that the probabilities are that the clot didn’t cause the death, by the fact that it washed away? A. Well, it was just another bit of information to lead me to the conclusion that I don’t know why he died. . . . Q. And you were able to find no evidence of a medical nature that could lead you to a conclusion that beatings had caused his death? A. That is true. . . . Q. So is it, you were not able to find any evidence of beatings that were so severe that they could cause his death, were you? A. That is true. (Italics mine.)
(1) Denial of Counsel:
Even if we accept the majority’s establishment of the critical stage at the grave side of Tom Page, the fact remains that the defendant was thereafter closely interrogated with the purpose of extracting from him a confession. The issue then, is whether he knowingly and intelligently waived his privilege against self-incrimination and his right to counsel before making the written confession which was introduced at trial. Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977, 84 Sup. Ct. 1758 (1964).15 The majority hold that “he made an intelligent, voluntary decision to proceed with his conversation with the police without the assistance of counsel.” Yet, the facts reveal that defendant made his written confession to a capital crime shortly after he was told by a judicial officer of the state that if he was to have an attorney, he must be able to pay, ergo, that he was not to have one. This “explanation” was the “illumination” with which defendant was left to interpret the statement made when he was taken to confess before a stenographer *818that he. had a right to an attorney. The majority says he was not misled because he had once before been represented by appointed counsel. In other words, what the judicial officer of the state did not know, the defendant of ninth grade education was presumed to know because at a different time, under different circumstances and by a different agency16 an attorney had been appointed to represent him. It is inconceivable that the court should presume that a defendant knew his rights after a judicial officer of the state specifically advised him that he did not have them. How could he in reason be presumed to have waived a right the existence of which, he was told, turned on wealth he did not possess? Defendant’s indigency compelled him to acquiesce in the absence of counsel. That is not a “voluntary decision to proceed . . . without the assistance of counsel.”
Because defendant was denied counsel at a critical stage, and in the absence of such counsel confessed, that confession is not admissible in our courts.
While not necessary to this conclusion there are two other reasons which require us to suppress that document. The first is that the critical stage in this case came when the defendant was placed in the bugged cell. The police, at that point, knew that Page had disappeared, that his home was spattered with blood, and that “Frank Drew was the only person who knew of the burial site.” The majority states that the bugging “does not mean that Drew was the suspect.” Apparently, emphasis is to be placed on the word “the”. But there were two suspects in this case. As the state admitted at trial:
At the time the cell was bugged, there were two suspects, two primary suspects, James Maillard and Frank Drew. James Maillard had information, and it was so accurate, that we couldn’t believe that a man could have that much information without being implicated. He implicated Gary Farrar and Frank Drew. James Maillard was not really absolved of this situation until Frank Drew confessed .... (Italics mine.)
*819And at the pre-trial hearing, Detective Zatkovich was asked on cross-examination: “Q. So he was a suspect, was he not? A. That is correct.”
At that point, Drew not only had a right to have an attorney, he in fact had an attorney. Yet his cell was bugged and the fruit of that effort was employed to extract his confession. There were taken from him at this critical stage his own incriminating words which the police deliberately extracted from him in the absence of his counsel. Escobedo, supra; Massiah v. United States, 377 U.S. 201, 12 L. Ed. 2d 246, 84 Sup. Ct. 1199 (1964). This illegally obtained information was then used to induce a confession which is thereby similarly poisoned. Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 Sup. Ct. 407 (1963). The police, having been successful in this effort, would now have us believe that the 80 hours of bugged conversations were quite nonincriminating. This self-serving testimony scarcely squares with other testimony given by them to the effect that when they played part of the tape the defendant capitulated and told all. Secondly, this record, from beginning to end, reveals the police weaving a web of deception, the purpose of which was to trap the defendant into confession and thus to avoid the inconveniences raised by his constitutional rights. The strands of that web cast a sinister shadow over the lives of the people of this state, innocent as well as guilty. Here the state of Washington is revealed procuring a bugged cell, procuring a “friend” to share it, procuring a reward to bait their hook, inducing a confession by playing the tapes of the bugging, charging defendant with the wrong crime and advising him that he had no right to appointed counsel. The policy behind the exclusionary rule is the refusal of the state to play the criminal’s game. There is a Plimsoll line of decency which indicates the depth beyond which the dignity of the state will not allow its officers to sink. That line has been passed in this case.
(2) Failure to prove Corpus Delicti:
The state had the burden of proving corpus delicti:
(1) The fact of death, and (2) a causal connection between *820the death and a criminal agency. State v. Lung, ante p. 365, 423 P.2d 72 (1967); State v. Little, 57 Wn.2d 516, 358 P.2d 120 (1961).17 The state, in attempting to prove a causal connection between the death of Page and the beating by Farrar (and therefore the guilt of Farrar’s co-felon Drew) relied upon the confession, independent proof supporting that confession,18 and the testimony of the pathologist, Dr. Wicks. Even with the confession there is grave doubt that the state met its burden of proving corpus delicti. Without it, we are left with the testimony of Dr. Wicks. Regarding the death of Page, Dr. Wicks testified: "I don’t know why he died.” Not only did he find no medical evidence that the beatings caused the death, but he in fact could find no evidence of any beatings severe enough to cause death! That leaves us with a bloodstained floor, ransacked drawers and a pawnbroker’s testimony, none of which is relevant to the issue of corpus delicti.
The case must be sent back for a new trial in which the illegally obtained confession is not used and in which the corpus delicti is proved.
Judge Langenbach is serving as a judge pro tempore of the Supreme Court pursuant to Art. 4, § 2(a) (amendment 38), state constitution.
On July 9, Farrar died a violent death as a result of an automobile accident in Oregon.
Detective Stark gave two reasons for this move: (1) the two inmates requested it (!) and (2) to obtain information “on a murder.”
The following testimony should be noted: “Q. And despite the fact that the court had appointed an attorney to represent him, and he did have such a court-appointed attorney, you still went ahead with these investigations in the bugging of his cell? A. [Detective Strand] Well, if he has an attorney, I guess that is all right. Q. As long as he has an attorney it is all right to bug his cell? A. Well, regardless
Maillard now disappeared from the case. He, too, before trial, died as the result of an automobile accident.
This dismissal had the effect of discharging his attorney. From this point forward, defendant was unrepresented by counsel.
Yet that portion of the interrogation tape which was played at the trial in an attempt to secure its introduction contained not a syllable of such an admonition.
A detective testified that they used the bugged cell for any information they could get and that they use such tapes “psychologically and so forth.”
It will be recalled that defendant stood before the justice charged with a capital crime.
The information later filed corrected this to allege that Drew had aided and abetted Farrar in that grisly crime.
The trial court interpreted Escobedo as follows: “The Court feels that . . . the Escobedo case, is not in point .... The Court is satisfied that the Escobedo case . . . has to be confined to the facts of the case, and that they are not similar to the facts in this case.”
Superior Court.
The majority cite Little as establishing that “where the evidence permits two possible theories as to cause of death and one will support the conviction, the conviction will be upheld.” In fact, Little held that a defendant is responsible for the natural consequences of his acts; that, therefore, even if the falls from the hospital bed were the immediate cause of death, the victim was in that bed, unconscious, incoherent and thrashing around because the defendant had inflicted upon him a linear skull fracture and a subarachnoid hemorrhage.
Listed in majority opinion as: Bloodstains at Page’s house, ransacked drawers, discovery of Page’s body in place indicated (which occurred before confession) and a pawnbroker’s testimony that Farrar and Drew sought appraisal of two rings.