The three charges, rape, crime against nature, and felonious housebreaking, all grew out of a single episode. The three cases, on motion of the State, were consolidated and tried together. Before confessing, the defendant signed a waiver of rights and made the confession which was reduced to writing and signed by him. The court, after hearing and findings of fact, concluded that the confession was voluntarily and understanding^ made after proper warning and permitted the State to introduce it in evidence. In the confession the references to the separate offenses are so interwoven as to make the confession one connected story. To relate the admissions exclusively to any one of the charges without involving the others would be impossible.
The result is that if the confession was inadmissible on the charge of rape, the State could not make it admissible by consolidation with the lesser charges. So the critical question is whether the confession is admissible on the charge of rape.
At the time the offenses were committed, the confession was obtained (both on June 4, 1971), and the trial held (September 10, 1971), Section 7A-457 of the North Carolina General Statutes was in full force and effect. Subsection (a) provided:
“An indigent person who has been informed of his rights under this subchapter may, in writing, waive any right granted by this subchapter, if the court finds of record that at the time of the waiver the indigent person acted with full awareness of his' rights and of the consequences of a waiver. In making such a finding, the court shall consider, among other things, such matters as the person’s age, education, familiarity with the English language, mental condition, and the complexity of the crime charged. A waiver shall not be allowed in a capital case.”
(Note: G.S. 7A-457 was rewritten by Chapter 1243, Session Laws of 1971, effective October 30, 1971.) Material at this stage, is the question whether the judge was correct in holding the defendant was not indigent at the time he made the *43confession and therefore not in a position to invoke the provision of the statute that counsel could not be waived in a capital case. On this question the record discloses the defendant was found to be indigent and counsel was appointed and acted at the preliminary hearing. The same counsel was present and acting when the State sought to introduce the defendant’s confession.
The evidence before the trial judge disclosed that the defendant had $5.00 in cash; an automobile on which $56.00 per month was due; and two bonds payable to him and his mother, each of which cost $18.75 and were in his mother’s possession in Ohio. On the original application for counsel, the defendant had disclosed his indebtedness of $4,000.00. The question of indebtedness was not raised on the voir dire before Judge Rouse. The stepfather had a salary of $9,000.00 per year with a wife and eleven other children. Any contribution which he might make toward the employment of counsel would have to be borrowed. “My family would have to do without.”
On the showing before the trial judge, we hold the evidence was insufficient to support his finding the defendant was not indigent and was able to employ counsel at the time of his confession. When a person is charged with three felonies, one capital, the law says he is entitled to be represented by competent counsel. If he is unable to employ counsel, the court must appoint one to represent him. The representation goes further, much further, than a mere sitting in on the original interrogation. The representation is presumed to continue as long as counsel may be of service in the case. The finding the defendant is not indigent, reversing the original holding, is not supported by the evidence and the conclusion that the defendant was not indigent at the time of his interrogation was error.
The defendant’s substantive rights are to be determined by the law in effect at the time the offenses were committed. At the time of the interrogation and confession, the defendant was indigent and was without counsel. Being charged with the capital felony of rape, he could not execute a valid waiver of counsel and, of course, the State could not place in evidence against him an invalid waiver. Otherwise, the provision, “A waiver shall not be allowed in a capital case,” is meaningless.
In passing on the question now involved, the Court is not unmindful of former decisions which hold that a certain type of *44constitutional right may be waived and a conviction affirmed if the appellate court finds beyond a reasonable doubt that the denial of the right was harmless error. In State v. Bass, 280 N.C. 435, 186 S.E. 2d 384, this Court held the presence of counsel at a lineup was a constitutional right, but the in-court identification of Bass was of such independent origin that the absence of counsel at the lineup was harmless beyond a reasonable doubt. In Bass, and in other similar cases, all counsel could have done was to see that the lineup was properly “lined up.”
The Constitution protects its citizens against forced self-incrimination. This eighteen-year-old Marine, being interrogated by his superiors in the Marine Corps, by the agents of the State Bureau of Investigation, and by the county officers, needed an attorney before making an admission which could lead to the loss of his life. The law of this State said counsel could not be waived.
This case is governed by the rule stated in State v. Blackmon, 280 N.C. 42, 185 S.E. 2d 123, rather than by the rule stated in State v. Bass, supra. In Blackmon, Justice Dan K. Moore for this Court said:
“Where, as in the present case, a confession made by the defendant is erroneously admitted into evidence, no one can say what weight and credibility the jury gave the confession. Even though there is other evidence sufficient to support a conviction, we cannot say beyond a reasonable doubt that the error in admitting the confession did not materially affect the result of the trial to the prejudice of the defendant or that it was ‘harmless error.’ Error in the admission of this evidence requires a new trial.”
See also Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705; State v. Accor and Moore, 277 N.C. 65, 175 S.E. 2d 583; and State v. Gaskins, 252 N.C. 46, 112 S.E. 2d 745. In the latter case Justice Clifton L. Moore for the Court said: “In the case sub judice there was ample evidence to sustain a conviction other than that drawn in question on this appeal. But we have no way of determining what evidence influenced the jury. It may well be that the evidence in question was the deciding factor.” The Court ordered a new trial.
For the reasons assigned and on the basis of authorities cited, this Court is required to hold, and now holds, the con*45fession made and signed by the defendant when he was without counsel was inadmissible in evidence against him. His Assignment of Error XVIII is sustained. The defendant is entitled to go before another jury. To that end it is ordered that on all charges there be a
New trial.