(dissenting) — I concur with the foregoing dissenting opinion, but wish to add briefly to what is stated therein.
The burden is on the state to establish the corpus delicti beyond a reasonable doubt. State v. Little, 57 Wn.2d 516, 358 P.2d 120 (1961); State v. Fry, 39 Wn.2d 8, 234 P.2d 531 (1951); State v. Anderson, 10 Wn.2d 167, 116 P.2d 346 (1941). The causal connection between the death of the *821deceased and an unlawful act cannot be supported on mere conjecture and speculation. State v. Little, supra; State v. Rounds, 104 Vt. 442, 160 Atl. 249 (1932).
In the present case, Dr. Wick’s testimony (which is the sole expert testimony produced by the state on the cause of death) establishes but one thing, to wit, that the cause of Page’s death is unknown. In response to a hypothetical question, the pathologist testified, in effect, that a beating such as described therein could cause shock, which could cause a blood clot, which in turn could cause heart attack and death. But his testimony is unequivocal that in this case it was impossible to determine whether the blood clot which he found was formed before or after death. If it was formed after death, obviously it could not have been the cause of death, and the state’s entire case as to the cause of death falls.
The testimony relative to the cause of death in this case is similar in many respects to that in State v. Downing, 24 Wash. 340, 64 Pac. 550 (1901), in which this court held that the state’s evidence was insufficient to justify the finding that the death was the result of a crime. I would hold in this case that the state failed to establish this essential element of the corpus delicti to that degree of certainty which the law requires. The evidence presented on this issue consisted merely of conjecture. Accordingly, as in the Downing case, the judgment should be reversed with directions to discharge appellant.
Assuming, arguendo, that the evidence was sufficient to establish the corpus delicti, I also agree that appellant’s confession must be excluded. His written statement was not given until after Drew’s appearance before a committing magistrate who handed him a printed form which stated that, if he were to have an attorney, he would have to retain one and pay him at his own expense. It is inconceivable to me that, in light of Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 Sup. Ct. 792 (1963), such a statement made by any court to an indigent defendant, standing before it accüsed of a capital crime, could be approved as *822proper advice as to his constitutional right to counsel. This is not a case in which a magistrate failed to advise an indigent accused regarding this constitutional right. Here, the advice given to Drew by the magistrate was diametrically opposed to the applicable rule laid down by the United States Supreme Court in Gideon. Drew had a right to rely on the magistrate’s advice, even though previously, in another case, he had had court-appointed counsel. Hence, Drew’s statement, taken after his appearance before the magistrate was, in my opinion, inadmissible at his trial. Because of this prejudicial error, I would grant appellant a new trial.
August 18,1967. Petition for rehearing denied.