(dissenting).
During trial of this case, Detective Leland Meikle was permitted to testify regarding certain inculpatory statements made to him by defendant in the course of a pretrial interrogation. Defendant interposed timely objections to the effect he was restrained of his liberty at time of questioning, and not given some of the constitutionally required prefatory Miranda warnings.
The majority finds no error in permitting introduction of this challenged testimony.
I submit the majority, in so finding, ignores certain well established applicable principles heretofore clearly enunciated by the United .States Supreme Court. I therefore dissent from divisions V, VI, VII, VIII and IX of the majority opinion.
I. Historically various courts have adopted differing positions as to the nature of sexual psychopath trials, many being understandably based upon precedent alone. Some have said they are civil in nature. See Wilson v. Blabon (9 Cir.), 370 F.2d 997, 1001; People v. Levy, 151 Cal.App.2d 460, 311 P.2d 897, 899; and Director of Patuxent Institution v. Daniels, 243 Md. 16, 221 A.2d 397, 409-411. Others *893say, though classified as civil, they more closely resemble criminal prosecutions in many critical respects. See People v. Abney, 90 Ill.App.2d 235, 232 N.E.2d 784, 786.
Code section 225A.9 states in relevant part: “The action shall be tried as a special proceeding * *
In Smith v. Bennett, the United States Supreme Court, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39, dealing with habeas corpus as a “special” proceeding, said, loc. cit., 365 U.S. 712, 81 S.Ct. 897: “We shall not quibble as to whether * * * it be called a civil or criminal action * *
Accordingly we should look not so much to statutory label as to the effect and ultimate result of any jury verdict finding a defendant to be a criminal sexual psychopath. See in this regard The Mentally Disabled and the Law, by Lindman and McIntyre, pages 308-309.
The majority rigidly limits Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed. 2d 527, to juvenile proceedings. However, I cannot escape the conclusion, some cogent and persuasive constitutional pronouncements in Gault are unavoidably applicable in the case at bar.
At the outset this relevant statement appears in Gault, at 387 U.S. 49-50, 87 S.Ct. 1455-1456: “In the first place, juvenile proceedings to determine ‘delinquency’, which may lead to commitment to a state institution, must be regarded as 'criminal’ for purposes of the privilege against self-incrimination. To hold otherwise would be to disregard substance because of the feeble enticement of the ‘civil’ label-of-convenience which has been attached to juvenile proceedings. * * * For this purpose, at least, commitment is a deprivation of liberty. It is incarceration against one’s will, whether it is called ‘criminal’ or ‘civil’. And our Constitution guarantees that no person shall be ‘compelled’ to be a witness against himself when he is threatened with deprivation of his liberty — a command which this Court has broadly applied and generously implemented in accordance with the teaching of the history of the privilege and its great office in mankind’s battle for freedom.” (Emphasis supplied.) See also Kent v. United States, 383 U.S. 541, 554-556, 86 S.Ct. 1045, 1054, 1055, 16 L.Ed.2d 84, and 17 Drake L.Rev. 53.
Heryford v. Parker, 10 Cir., 396 F.2d 393, involved commitment of a mentally deficient person, not afforded benefit of legal counsel at hearing. In holding this to be a denial of due process the court stated at 396 F.2d 396: “ * * * like Gault, and of utmost importance, we have a situation in which the liberty of an individual is at stake, and we think the reasoning in Gault emphatically applies. It matters not whether the proceedings be labeled ‘civil’ or ‘criminal’ or whether the subject matter be mental instability or juvenile delinquency. It is the likelihood of involuntary incarceration — whether for punishment as an adult for a crime, rehabilitation as a juvenile for delinquency, or treatment and training as a feeble-minded or mental incompetent — which commands observance of the constitutional safeguards of due process. Where, as in both proceedings for juveniles and mentally deficient persons, the state undertakes to act in parens patriae, it has the inescapable duty to vouchsafe due process, * *
The Colorado Sex Offender’s Act was found unconstitutional in Specht v. Patterson, 386 U.S 605, 87 S.Ct. 1209, 18 L.Ed.2d 326, and the court there stated, loc. cit., 386 U.S. 608, 87 S.Ct. 1211: “These commitment proceedings whether denominated civil or criminal are subject both to the Equal Protection Clause of the Fourteenth Amendment as we held in Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620, and to the Due Process Clause." (Emphasis supplied.)
The foregoing pronouncements bear directly on the case before us. It is immaterial that Scheetz has not been convicted of any crime. Nor is his commitment to *894an institution designated a hospital rather than a penal institution of any special significance. The argument that defendant has not been formally convicted of a crime is no more persuasive than that advanced in Gault, supra, to the effect a juvenile is only adjudged “delinquent”.
We cannot avoid the serious consequences of our criminal sexual psychopath proceedings simply by designating them as “special”. Defendant has been adjudged a criminal sexual psychopath and committed to a mental institution for an indefinite period. Labels cannot obscure the relatively harsh nature of such a commitment, preliminarily foundationed upon the filing of a criminal charge. Code section 225A.1. Whether denominated “special” or otherwise, the proceedings with which we are here concerned demonstrably resulted in a deprivation of liberty, and were clearly subject to the due process clause of the United States Constitution. See Specht v. Patterson, 386 U.S. 605, 608, 87 S.Ct. 1209, 1211, 18 L.Ed.2d 326; Griffin v. State of California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106; and People v. Olmstead, 32 Ill.2d 306, 205 N.E.2d 625, 627.
Referring again to Specht, supra, loc. cit, 386 U.S. 610, 87 S.Ct. 1212, the Court said: “Due process, * * * requires that he [defendant] be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own. And there must be findings adequate to make meaningful any appeal that is allowed.” See also Sims v. State of Georgia, 385 U.S. 538, 544, 87 S. Ct. 639, 643, 17 L.Ed.2d 593.
By virtue of all that has heretofore been said it becomes evident the constitutional requirements of due process, with attendant rights under Amendment 5, must be accorded a person charged under our sexual psychopath law, regardless of any label applied to such trial proceedings.
II. Plaintiff concedes Leland Meikle, a Cedar Rapids Detective, contacted defendant Scheetz and requested he come to the police station for a discussion relative to a series of attacks on women in that community.
Called as a witness for the prosecution this officer stated he began questioning defendant about 6:00 P.M., January 30, 1966, after having advised him of his rights to telephone and have an attorney present, and “anything he said would be strictly voluntary”, and “he didn’t have to tell me anything unless he wanted to.”
However, on “voir dire” by defendant’s counsel, Meikle admitted defendant was never told that in the event he could not afford an attorney the court would appoint one for him.
Defendant made timely and adequate objections to any interrogation-obtained-evidence by Detective Meikle, based upon insufficiency of pre-interrogation warnings given, in that defendant was not advised that in the event of financial inability on his part to engage the services of an attorney the court would appoint one to represent him.
Dealing with that subject the United States Supreme Court said in Miranda v. Arizona, 384 U.S. 436, 478-479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694: “* * * we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Op*895portunity to exercise these rights must be afforded to him throughout the interrogation. After such zvarnings have been given, and such opportunity afforded hint, the individual may knozmngly and intelligently waive these rights .and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be zised against him.”, (Emphasis supplied.) With regard to the foregoing see also Jackson v. Denno, 378 U.S. 368, 380-389, 84 S.Ct. 1774, 1783-1787, 12 L.Ed. 2d 908, 1 A.L.R.3d 1205; Carnley v. Cochran, 369 U.S. 506, 507-513, 82 S.Ct. 884, 885-889, 8 L.Ed.2d 70; State v. Holland, 258 Iowa 206, 214-215, 138 N.W.2d 86; and Carpentier v. Lainson, 248 Iowa 1275, 1279-1280, 84 N.W.2d 32, 71 A.L.R.2d 1151.
At this point the time element involved must be considered. Defendant was questioned January 30, 1966; the Miranda opinion appeared June 13, 1966; and trial commenced April 12, 1967.
This would indicate, at first glance, Miranda was not here applicable, but Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, discloses otherwise. There the court held, in pertinent part, the aforesaid pre-interrogation warning requirements apply to trials commenced subsequent to June 13, 1966. And, as previously noted, trial of the instant case began April 12, 1967.
The record in the case at hand discloses Officer Meikle did not question Scheetz as a known preface to any sexual psychopath proceedings, it being his purpose to interrogate defendant regarding reported criminal activities. But that again is a matter of no consequence.
In Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381, the defendant, in custody on a criminal charge, was questioned by an Internal Revenue officer, absent any Miranda warnings, relative to income tax matters then being inquired into. Later the government contended the questions asked by its agent were part of a routine tax investigation where no criminal action might even be. brought, and the interrogated party had not been incarcerated by the questioning officer. These arguments were held to be devoid of merit with this statement, loc. cit., 391 U.S. 4, 88 S.Ct. 1505: “It is true that a ‘routine tax investigation’ may be initiated for the purpose of a civil action- rather than criminal prosecution. To this extent tax investigations differ from investigations of murder, robbery, and other crimes. But tax investigations frequently lead to criminal prosecutions, just as the one here did. In fact, the last visit of the revenue agent to the jail to question petitioner took place only eight days before the full-fledged criminal investigation concededly began. And as the investigating revenue agent was compelled to admit, there was always the possibility during his investigation that his work would end up in a criminal prosecution. We reject the contention that tax investigations are immune from the Miranda requirements for warnings to be given a person in custody.
"The Government also seeks to narrow the scope of the Miranda holding by making it applicable only to qztestioning one who is ‘in custody’ in connection with the very case under investigation. There is no substance to such a distinction, and in effect it goes against the whole purpose of the Miranda decision which was designed to give meaningful protection to Fifth Amendment rights. We find nothing in the Miranda opinion which calls for a curtailment of the warnings to be given persons under interrogation by officers based on the reason why the person is in custody.” (Emphasis supplied.)
As applied to the instant case, Mathis means the fact that Officer Meikle was testifying in this sexual psychopath proceeding, rather than in the prosecution of a criminal action, makes no difference. A suspect in custody, interrogated with reference to possible criminal charges, has Fifth Amendment rights, and any evidence ob*896tained in violation therof is equally inadmissible when offered in the trial of a case other than that which motivated the original interrogation. See also United States v. Dickerson, D.C., 291 F.Supp. 633.
Meaningful support is afforded the foregoing conclusion by this pertinent statement in Miranda, supra, loc. cit., 384 U.S. 467, 86 S.Ct. 1624: “Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.”
Even more specifically the court stated in Gault, supra, at 387 U.S. 47-48, 87 S.Ct. 1454: “It would indeed be surprising if the privilege against self-incrimination were available to hardened criminals but not to children. The language of the Fifth Amendment, applicable to the States by operation of the Fourteenth Amendment, is unequivocal and without exception. And the scope of the privilege is comprehensive. As Mr. Justice White, concurring, stated in Murphy v. Waterfront Commission, 378 U.S. 52, 94, 84 S.Ct. 1594, at 1611, 12 L.Ed.2d 678 (1964):
“ ‘The privilege can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory. * * * it protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used.’ (Emphasis supplied.)” See also Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) and McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924).
Of special import is People v. Capoldi, 10 Ill.2d 261, 139 N.E.2d 776, which deals with a case brought under the Illinois Criminal Sexual Psychopath Act, and the court informatively stated at 139 N.E.2d 779: “Over defendant’s objections the [trial] court admitted into evidence two statements signed by him in 1936, following the murder of the five-year-old girl. He contends they are confessions which should not have been admitted in this proceeding without a preliminary hearing as to their voluntariness. Each of the statements is in the form of answers to questions propounded to defendant while in the custody of police, and relate in full detail the commission of a revolting sex murder. Had they been offered in a prosecution for the murder there could be no question of their character as confessions. In such cases the burden is always on the State to' prove * * * the purported confession is free from the taint of unreliability because of promises, intimidation or coercion. (Case cited.) The rule that the use of involuntary confessions at a criminal trial violates due process of law and that the State must prove, at a hearing out of the jury’s presence, the confession to have been voluntarily made, is so well established that citation of authority is unnecessary. The State argues, however, that the present proceeding is not a criminal case, and that the statements were not admitted in their character as confessions but merely as admissions against interest.
"Insofar as the present requirements of due process are concerned, it is of little significance that the proceedings are civil in nature. A defendant found to be a sexually dangerous person under the Act is deprived of his liberty as a consequence,, and must be accorded the protections of due process in his trial. We conclude that in proceedings under the act, as well as in trials for criminal offenses, the admission of statements which are in the nature of confessions requires preliminary proof of their voluntary character. We also think the statements in question here, while they are not in terms admissions or confessions that defendant is a sexually dangerous person, must be regarded as such for the purposes of the present requirement.” (Emphasis supplied.)
I would accordingly hold the fundamental principle proclaimed in Miranda v. Arizona, supra, must be accorded full recognition in *897the trial of any party informed against under chapter 22SA, Code, 1966, and was applicable as to the testimony of Detective Meikle in the sexual psychopath trial of defendant Scheetz.
III. But plaintiff argues defendant was not in custody at time of questioning by the police officer. Accordingly we must look to all the circumstances attendant upon the interrogation process. See Greenwald v. Wisconsin, 390 U.S. 519, 88 S.Ct. 1152, 1153-1154, 20 L.Ed.2d 77.
As disclosed by the majority opinion, Scheetz appeared at the police station pursuant to a request previously made. And according to the record he was there questioned by Meikle for at least an hour and a half, as a result of which self-incriminatory statements were obtained.
The majority quotes at length a portion of Officer Meikle’s testimony regarding his questioning of defendant, but in so doing overlooks some questions and answers given by this officer, found in the trial transcript which is before us. I refer to the following :
“0. Officer, let me direct your attention to the date of January 30, 1966. Were you employed as a detective for the Cedar Rapids Police Department at that time? A. Yes, sir, I was.
“O. And did you have cause to make any investigation into any incidents regarding Oscar William Scheetz, Jr.? A. Yes, I did.
“O. Can you tell us — let me direct your attention to approximately seven-thirty p. m. on the date of January 30, 1966. Did you have an opportunity to discuss and question Oscar William Scheetz, Jr.? A. Yes, sir, I did.
“O. All right. A. He came into the station at about six p. m. that same evening as I had asked him to do and / talked to him in relationship to a number of assaults that had taken place in the city and during that period of time he had been identified by two witnesses — complaining witnesses as the man who had approached them on the street and as you state, about seven-thirty, I began typing a statement of his admissions to those assaults.” (Emphasis supplied.)
This alone serves to disclose, when Detective Meikle asked that Scheetz come to the police station the officer then had substantial reason to believe defendant was a prime suspect in the matters to be discussed. From this it reasonably follows, any investigation pursued by Meikle had focused on defendant at the time he was invited to report at the station. As a result that entire interrogation process w,as accusatory in nature. See Escobedo v. Illinois, 378 U.S. 478, 484-486, 84 S.Ct. 1758, 1761-1762, 12 L.Ed.2d 977.
Moreover, after defendant, “had been identified by two witnesses — complaining witnesses as the man who had approached them on the street”, Meikle had probable catise to arrest. It must also be presumed he would perform his duty and effect that arrest. Any other holding would permit an unbridled frustration of Miranda’s commands.
Considering now the matter of in-custody-inquiries, the court said in Miranda v. Arizona, supra, at page 444, 384 U.S., page 1612, 86 S.Ct.: “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”
Unquestionably Scheetz was subjected to an invited police station interrogation, which in turn means it was initiated by Officer Meikle.
Upon the basis of the record before us it cannot be said defendant was under “arrest” in the strict or legal sense of that term when he entered the station. On the other hand the matter of deprivation of his freedom of action in any significant manner is a factor which must be considered.
*898Initially I refer to this statement in People v. Gioviannini, Cal.App., 67 Cal.Rptr. 303, 310: “It is not necessary for a person to be under arrest for him to be in custody. Even one who comes to a police station voluntarily may be regarded as in custody. (Cases cited).”
Myers v. State of Maryland, 3 Md.App. 534, 240 A.2d 288, involved a factual situation similar to that presented in the case with which we are here concerned. There, police officers in a squad car observed a suspect walking along a street. The policemen stopped and told the subject they wanted to talk to him, whereupon he entered the automobile. Without giving those warnings postulated by Miranda, the officers questioned the suspect and he orally confessed commission of a crime. That confession was held inadmissible in evidence, on trial, with this pertinent statement, loc. cit., 240 A.2d 291: “ * * * the questioning of the appellant by the police officers in their police vehicle constituted a 'custodial interrogation’ within the ambit of the Miranda decision. As heretofore indicated, the appellant was the prime suspect in a murder case and the police had undertaken to find him. Once located, he was suddenly taken from the public street, and placed in a police car with two officers who interrogated him about the crime as the car moved toward police headquarters. That appellant was not free to leave the officers is wholly evident from the record, and we think ‘the atmosphere’ thus created was such as carried ‘its own badge of intimidation.’ See Miranda, 384 U.S. at page 457, 86 S.Ct. 1602. We conclude that appellant’s interrogation constituted ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way,’ squarely within Miranda’s meaning, and consequently we hold that the lower court erred in admitting appellant’s oral confession in evidence against him.”
Another case dealing with the issue at hand is Seals v. United States, 117 U.S. App.D.C. 79, 325 F.2d 1006. There Seals, walking along the street, was approached by FBI agents cruising in an automobile. They stopped and asked if he would come to the car, stating that they wanted to talk to him. He complied and entered the vehicle. The officers then drove a few blocks away, stopped the car and started talking to Seals. From there the party went to Seals’ apartment where there was more talk. They then went to the FBI downtown office. Seals was then told he did not have to talk, had a right to consult a lawyer before talking, but if he did talk anything said could be used against him in court, and he was free to leave. Defendant then confessed the commission of a crime.
In course of trial the judge found, as the result of a “voir dire” examination, Seals was not under arrest prior to the confession.
On appeal the reviewing court reversed and in so doing stated at 325 F.2d 1008-1009: “Viewing the evidence in the light most favorable to the Government, and giving the court’s finding the great weight to which it is entitled, we must nevertheless conclude that Seals was under arrest at least from the time (about 4:30 p. m.) he was brought to the Field Office in the company of the agents. Such a conclusion seems to us well nigh irresistible. By that time, Seals ‘would have been rash indeed to suppose he was not under arrest,’ Kelley v. United States, 111 U.S. App.D.C. 396, 398, 298 F.2d 310, 312 (1961). From that point on he was in what was the equivalent of a police station, he was in the constant company of one or more FBI agents, and was subjected to almost constant interrogation. It seems to us these circumstances dictate a finding that even without any physical restraint Seals necessarily must have understood that he was in the power and custody of the FBI and that he submitted to questioning in consequence. As we held in Coleman v. United States, 111 U.S.App.D.C. 210, 218, 295 F.2d 555, 563 (en banc 1961), this *899would constitute arrest, even though no actual force or visible physical restraint was used, or any formal declaration of arrest made. The fact that Seals was told that he was free to leave and that he was not under arrest would hardly in the circumstances in which he found himself — never left alone and constantly in the company of FBI agents in their offices (observed by him to be difficult of access and presumably thought to be difficult of exit) —suggest to him, a 19-year old high school student, that he was in fact free.”
Also in point is United States v. Harrison, D.C., 265 F.Supp. 660. In that case police officers suggested a party accompany them to the station house for questioning relative to his possible involvement in violation of narcotics laws. He complied, and at police headquarters, absent the Miranda warnings, made certain incriminatory statements relative to possession of wagering materials, later subjected to a motion to suppress. In upholding that motion the court said at 265 F.Supp. 662: “The government’s contention that the statement was properly taken and the wagering materials were legally seized breaks down into two major premises. First, it is said that Harrison voluntarily appeared in the station house and submitted to questioning. Second, the prosecution urges that information gleaned largely, if not entirely, from the interview engendered ‘probable cause’ for the officers’ search of Harrison’s store. Unfortunately, I am unconvinced by the first premise or argument; rather, I find that the totality of circumstances as stated in the prosecution’s version of what transpired at the station house amounted to ‘custodial interrogation’, as that term is defined in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).”
Actually, the word “custody” defies any precise definition. It depends more upon the environmental situation in which a person is placed, by reason of which he may have cause to believe his freedom of movement is or will be restricted by official authority, than on the subjective intent of the interrogator.
In this respect, one of the vices attendant upon custodial interrogation which Miranda and Escobedo condemn is that which lies in the psychological coercion implicit in any isolated questioning, with the resultant effect an individual may reasonably believe he is not at liberty to leave. Under such circumstances a party being interrogated finds himself deprived of freedom of movement. Lacking knowledge of his constitutional rights he may understandably feel he can best avoid implication or absolve himself only by submitting to interrogation; that silence will be nothing short of self-incrimination. He may also reasonably believe any attempt to leave will have the same result, and will further serve to provoke immediate iso-latable detention.
With regard to the foregoing the court said in Miranda v. Arizona, supra, loc. cit., 384 U.S. 461, 86 S.Ct. 1620-1621: “We are satisfied that all the principles embodied in the privilege apply to informal compulsion exerted by law-enforcement officers during in-custody questioning. An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion * * * cannot be otherwise than under compulsion to speak. As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or 'other official investigations, where there are often impartial observers to guard against intimidation or trickery.” (Emphasis supplied.)
A consideration of all circumstances attendant upon the police station interrogation of Scheetz leads to no other conclusion than that he, being a prime suspect, was then and there deprived of his freedom in a significant manner by official authority. In support hereof see also *900Orozco v. Texas, 394 U.S. —, 89 S.Ct. 1095, 22 L.Ed.2d 311, opinion filed March 25, 1969; United States v. Gower, (M.D. Penn.), 271 F.Supp. 655, 660-661; People v. Hazel, 252 Cal.App.2d 412, 60 Cal.Rptr. 437, 440-441; People v. P. Rodney, 21 N.Y.2d 1, 286 N.Y.S.2d 225, 233 N.E.2d 255; and Annos. 10 A.L.R.3d 1054.
Moreover, the record, quoted by the majority, discloses Detective Meikle, in testifying as a witness for plaintiff, related in detail the interrogation-obtained damaging statements and admissions made to him by defendant.
I would resultantly hold, with regard to custodial questioning by Meikle, defendant was entitled to all pre-interrogation warnings prescribed by Miranda, some of which were not given, and upon the basis of authorities cited, supra, trial court erred in overruling defendant’s objections to the evidence of this police officer relative to in-custody admissions or confessions obtained by him from defendant.
Additionally, the erroneous admission of any or all such evidence, even in the presence of other testimony which might alone be sufficient to sustain a verdict finding defendant to be a criminal sexual psychopath, clearly constitutes reversible error. Supporting this principle is Estes v. Texas, 381 U.S. 532, 562-563, 85 S.Ct. 1628, 1643, 14 L.Ed.2d 543, where the court held, if an involuntary confession is introduced into evidence, over objection, at a state trial, the conviction must be reversed even though there is other evidence in the record to justify a guilty verdict.
IV. Additionally Division IX of the majority opinion contains this statement: “Defendant challenges Dr. Hege’s testimony relative to his findings resulting from a judicially prescribed examination of defendant as in-custody interrogation and inadmissible.”
I do not find that allegation among defendant’s assigned errors and note the majority does not list it among those relied on for reversal.
As best I can determine no issue is here presented relative to constitutional admissibility in evidence of inculpatory or exculpatory statements made by defendant to the psychiatrist in course of the court ordered psychiatric examination.
Under these circumstances any determination of that issue should be withheld until it is squarely presented, briefed and argued to this court. This is in keeping with the rule that where a question is not presented for determination by trial court, nor assigned as an error or a proposition relied on for reversal, it will not be considered on appeal. See B-W Acceptance Corp. v. Saluri, 258 Iowa 489, 499, 139 N.W.2d 399; and Bryan v. Iowa State Highway Commission, 251 Iowa 1093, 1095-1096, 104 N.W.2d 562.
I submit, absent an adversary presentation, any attempt to resolve the problem, here gratuitously injected into the majority opinion, unavoidably compels this court to adopt the position of an advocate. This is demonstrated by the divergent views expressed in People v. Garcia, Cal.App., 74 Cal.Rptr. 103; People v. Potter, 85 Ill.App.2d 151, 228 N.E.2d 238; State v. Obstein, 52 N.J. 516, 247 A.2d 5; and State v. Whitlow, 45 N.J. 3, 210 A.2d 763.
V. By reason of the conclusions set forth in Divisions I, II and III of this dissent, I would reverse and remand for a new trial.
JJ., join dissent.
STUART, J., joins in all but Division III of this dissent.