(dissenting)—I cannot agree with the majority opinion in these two cases because, after an exhaustive examination of the voluminous record and briefs, I am convinced that both defendants were denied rights guaranteed them by the fifth 'and sixth amendments to the United States Constitution as construed and applied by the United States Supreme Court in recent decisions.
Before stating my reasons for dissenting, I think it appropriate to quote the definition of a fair and impartial trial which this court has approved on several occasions. It is stated in State v. Lindsey, 27 Wn.2d 186, 191, 177 P.2d 387 (1947), as follows:
Judge Mitchell stated, in the case of State v. Devlin, supra [145 Wash. 44, 258 Pac. 826]:
“The question involved is that of a fair and impartial trial. In State v. Pryor, 67 Wash. 216, 121 Pac. 56, this court said:
“ ‘A fair trial consists not alone in an observation of the naked forms of law, but in a recognition and a just application of its principles.’
“It is the law of the land, a right vouchsafed by the direct written law of the people of the state. It partakes of the character of fair play which pervades all the activities of the American people, whether in their sports, business, society, religion or the law. In the maintenance of government to the extent it is committed to the courts and lawyers in the administration of the criminal law, it is just as essential that one accused of crime shall have a fair trial as it is that he he tried at all, whether he he guilty or not, has his picture in the rogue’s gallery or not. . . . ” (Italics mine.)
That case was heard again en banc and a majority of the court adhered to the departmental opinion.
In my opinion neither of these defendants had a fair trial, and hence each of them is entitled to a new trial. I shall discuss each case separately.
Appellant Aiken
Lest one be led to believe that the effects of this case will die with the accused, since future cases will be governed by *355the more stringent rules set forth by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 Sup. Ct. 1602 (1966), while these appellants must be judged under the criterion of Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977, 84 Sup. Ct. 1758 (1964), it should be stressed that the central issue here is waiver of a constitutional right. The rules set forth governing that important principle will remain and will control future cases in this state, even under Miranda standards. It is largely the violence done to that concept by the majority opinion in this case that compels my dissent. It is my firm belief that no single conviction of an accused is worth the harm that may be done by this ruling. Constitutional safeguards must not be sacrificed upon the altar of expediency. It must be remembered that:
[Ujnfair means may happen to result in doing justice to the prisoner in the particular case, yet, justice so attained, is unjust and dangerous to the whole community. Hurd v. The People, 25 Mich. 405, 416 (1872).
Until today, I had always thought it too apparent to require explication that “waiver” of a constitutional right by an accused required either some voluntary affirmative expression in word or in deed by the accused, or at least a voluntary and knowing acquiescence in the loss of that right by him. Miranda v. Arizona, supra; Escobedo v. Illinois, supra; Brookhart v. Janis, 384 U.S. 1, 16 L. Ed. 2d 314, 86 Sup. Ct. 1245 (1966); Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461, 58 Sup. Ct. 1019, 146 A.L.R. 357 (1938); Carnley v. Cochran, 369 U.S. 506, 8 L. Ed. 2d 70, 82 Sup. Ct. 884 (1962). See, also, Glasser v. United States, 315 U.S. 60, 86 L. Ed. 680, 62 Sup. Ct. 457 (1942).
But, by the majority opinion in this case, it is held sufficient if interrogators “do not hear” the accused’s attempt to assert the right which he has previously been told he has, and he thereafter, in desperation, attempts to remove the finger of guilt from himself by seeking to have his accuser retract his accusation; and, having failed in this attempt, finally confesses his guilt.
*356Let no mistake be made here—appellant Aiken did not acquiesce; he succumbed!
It is indisputable that even fundamental constitutional rights may be waived by the accused. Escobedo v. Illinois, supra. However, the question of a waiver of a federally guaranteed constitutional right is a federal question, controlled by federal law. Brookhart v. Janis, supra.
Under federal law, there is a strong presumption against the waiver of fundamental constitutional rights, and, for a waiver to be effective, it must be clearly established that there was “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, supra at 464. (Italics mine.)
The foregoing principles were reiterated and given concrete application by the United States Supreme Court in Miranda v. Arizona, supra at 475:
If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. Illinois, 378 U. S. 478, 490, n. 14. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U. S. 458 (1938), and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.
An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. A statement we made in Carnley v. Cochran, 369 U. S. 506, 516 (1962), is applicable here:
“Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was *357offered counsel but intelligently and understanding^ rejected the offer. Anything less is not waiver.”
See also Glasser v. United States, 315 U. S. 60 (1942).
It is obvious, therefore, that the fact that Aiken eventually give a statement following an intensive interrogation cannot constitute a waiver of the rights that he had unsuccessfully attempted to exercise some minutes earlier in the same interrogation, even though the required “warnings” have been given.
Nor can the fact that appellant Aiken requested the confrontation with Wheat be rationally construed to be a waiver of the right he had just attempted to assert without success. To so hold, one must close his eyes to the facts of the interrogation.1
Aiken had been shown Wheat’s statement accusing him (Aiken) of having been the “triggerman” in the killing of Daniel Wolf. The interrogating officers told Aiken that the statement was corroborated by the physical evidence, and that the only way he could “help himself” was to “tell the truth.” Aiken, apparently seeing the hopelessness of his situation, requested the assistance of counsel, and the requests went unheeded.
When Aiken expressed his desire to discontinue the interrogation, he was told that if he did not “cooperate” he would be charged “on every single count.” In other words, Aiken would be charged with three first-degree murders instead of one. The only conceivable avenue of escape for Aiken short of confessing, was to attempt to get Wheat to retract his accusing statement, and this is what Aiken tried to do. To interpret this action as a knowing and intelligent voluntary waiver of his expressly requested right to counsel seems to me to fly in the face of reason.
When Wheat refused to retract his statement, Aiken’s “breaking” as the result of this entire chain of circumstances*3582 was almost inevitable. As the United States Supreme Court pointed out in Escobedo v. Illinois, supra at 485:
“It cannot be doubted that, placed in the position in which the accused was when the statement was made to him that the other suspected person had charged him with crime, the result was to produce upon his mind the fear that if he remained silent it would be considered an admission of guilt, and therefore render certain his being committed for trial as the guilty person, and it cannot be conceived that the converse impression would not also have naturally arisen, that by denying there was hope of removing the suspicion from himself.”2 3
*359It must be concluded, therefore, that neither the fact that Aiken did eventually confess participation in one or more of the crimes, nor the requested confrontation with Wheat, even though both occurred after Aiken had been told he had a right to counsel, can reasonably be interpreted as waiver of that right under the circumstances presented.
Central to the majority’s thesis of “waiver” is the finding of the trial court that Aiken’s interrogators did not “hear” appellant Aiken’s repeated requests for counsel. This finding, which is challenged by appellant Aiken on this appeal and which is set forth verbatim in the majority opinion at page 336, was based on several factors which may be summarized as follows: (1) the officers said they did not hear any requests; 4 (2) Aiken was a soft-spoken individual; (3) the “interview” room was not soundproof and outside noises interfered with communication; (4) the interrogators did not sit “next to” appellant Aiken;5 (5) Aiken was difficult to understand on the tape recording of the interrogation.6
*360However, the argument overlooks the fact that our concern here is with “waiver” of the right to counsel to which Aiken was indisputably entitled at the time.
Whatever else it may be, waiver is an intentional relinquishment or abandonment, and the necessary intention is that of the accused. No act or failure to act on the part of his interrogators can conceivably be construed to have been an intentional waiver on the part of Aiken.
Therefore, if waiver by Aiken is to be found in this circumstance (failure of the interrogating officers to “hear”), it must logically be based on Aiken’s knowing failure to successfully communicate his desires to his interrogators.
But such a knowing failure is not even alleged in this case, nor are there facts in the record which could reasonably support such an allegation had it been made.7
In Townsend v. Sain, 372 U.S. 293, 9 L. Ed. 2d 770, 83 Sup. Ct. 745 (1963), which involved a purportedly “drug induced” confession, the United States Supreme Court stated, at page 308, the applicable principle:
It is not significant that the drug may have been administered and the questions asked by persons unfamiliar with hyoscine’s properties as a “truth serum,” if these properties exist. Any questioning by police officers which in fact produces a confession which is not the product of a free intellect renders that confession inadmissible. The Court has usually so stated the test. See, e.g., Stroble v. California, 343 U. S. 181, 190: “If the confession which petitioner made . . . was in fact involuntary, the conviction cannot stand . . . .” And in Blackburn v. Alabama, 361 U. S. 199, we held irrelevant the absence of evidence of improper purpose son the part of the questioning officers. (Italics mine.)
*361Therefore, the only pertinent inquiry relates to the effect on the interrogated. Aiken of the failure of his interrogators to honor his repeated request for legal assistance or for an end to the interrogation. In this inquiry, it must be kept firmly in mind that no reason existed for Aiken to believe that his repeated requests had not been heard.
This being the case, I can perceive no distinction on the question of waiver between the circumstances existing here and those where the requests of the accused are heard and ignored. And clearly, nothing in this record can be deemed to have been a voluntary, knowing, and intelligent waiver by appellant Aiken.
Therefore, given Aiken’s express request for the assistance of counsel and the effective denial of that right, I can conceive of no possible conclusion but that, under the existing law, Aiken’s confessions must be excluded. I would reverse his conviction and remand for retrial absent the statements extracted from him as the result of this interrogation.8
*362My next point of disagreement with the majority relates to appellant Aiken’s contention that he is entitled, under RPPP 101.20W, to present to the jury the fact of his request for the assistance of counsel.
The argument of the majority on this point fails to make the fundamental distinction between admissibility of evidence and the weight to be accorded that evidence.
Rule of Pleading, Practice and Procedure 101.20W (d) provides, in part, that after the trial court has held the threshold hearing regarding the admissibility of a challenged confession:
If the trial judge rules that the confession is admissible, and it is offered in evidence: (1) the defense may offer evidence, or cross-examine the witnesses, with respect to the circumstances surrounding the confession
and
(4) if the defense raises the issue of voluntariness under (1) above, the jury shall be instructed that they may give such weight and credibility to the confession, in view of the surrounding circumstances, as they see fit.
In State v. Collins, 69 Wn.2d 627, 419 P.2d 590 (1966), this court stated that:
[T]he defendant at all times is armed with a quintuple safeguard to prevent the use of a forced or false confession. (1) If he knows that he need not make a statement at all, he is free to confess or not; the choice remains with him. (2) If he knows of his right to consult counsel before answering any question, he probably will not allow his will to be overcome. (3) If he is assured of his right to remain silent and that anything he says may be used in evidence and also of his right to consult with counsel, he knows too that he cannot be subject to physical force or fear of violence. (4) The trial judge passes upon the confession and determines as a fact whether the confession was involuntary or freely and voluntarily given. (5) The defendant may present to the jury de novo all of the detailed facts connected with the giving of the confession upon which an assertion of involuntariness may be claimed to depend, and if the jury believes the confession to be involuntary, they may disregard it. (Italics mine.) (p. 636)
*363Even more recently, in State v. Piche, 71 Wn.2d 583, 588, 430 P.2d 522 (1967), this court said:
If, from conflicting evidence as to the circumstances surrounding the taking or giving of the confession, the court finds the confession was voluntarily made, it becomes prima facie admissible. State v. Streeter, 67 Wn.2d 39, 406 P.2d 590 (1965); State v. Gersvold, 66 Wn.2d 900, 406 P.2d 318 (1965); and State v. Darst, 65 Wn.2d 808, 399 P.2d 618 (1965). The defendant may, of course, submit anew the question of voluntariness to the jury. (Italics mine.)
Yet the majority, after having so recently guaranteed this right to all criminally accused, concludes that this appellant is not entitled to this “safeguard.” No attempt is made to explain how such a holding is compatible with the guarantee of equal protection under the fourteenth amendment to the United States Constitution. I doubt that such an argument could be legitimately made.
In my opinion, it is imperative that appellant Aiken be afforded this right. The weight given these confessions becomes of paramount importance in view of the fact that the jury, and it alone, determines not only the fact of guilt or innocence, but also whether the punishment to be imposed shall be death. In re White v. Rhay, 64 Wn.2d 15, 390 P.2d 535 (1964). RCW 9.48.030; RCW 10.49.010.
The statements involved in this case are essentially inflammatory in nature, going beyond the fact of the commission of the crime to the details of their commission. It may well be that the weight accorded these statements was crucial in the determination by the jury in rendering its verdict, and I think that it is impermissible to deny any criminally accused an adequate opportunity to present all evidence favorable to him bearing on the issues involved, and I further feel that this court cannot do so where such a right is guaranteed by RPPP 101.20W, supra, to all criminal defendants generally.
In this connection, the court instructed the jury, in instruction No. 24, that:
*364Admissions or confessions made by a defendant charged with crime, when such admissions or confessions are voluntarily given and not caused by duress or fear produced by threats, are to be considered by the jury in connection with all the other evidence in the case in determining the guilt or innocence of the accused, and their weight as evidence, like that of any other fact, is to be determined by you alone. If you find that any such admissions or confessions have been freely and voluntarily made in this case, you have a right, in weighing such testimony, to consider all the facts and circumstances connected therewith, together with the defendant’s interest, if any, in the transaction, and his knowledge, if he had any, of the circumstances surrounding the same, and all other circumstances which may throw any light upon or aid you in weighing such testimony. If you find admissions or confessions were not made voluntarily, it is your duty to disregard the same.
The prosecutor, in final argument, stressed the lack of evidence of a request by Aiken, telling the jury that:
There has been no one, not one shred of evidence contradicting the fact that they [the officers] did warn them [appellants] of their rights.
Mr. Egger [counsel for appellant Aiken], in his argument says to you, did anyone say that the Defendant Aiken was warned of his rights, and, ladies and gentlemen, Mr. Egger has not put forth any evidence contrary to the evidence of Mr. Goff, Mr. Eisner, Mr. Seldomridge, Detective Leitch, Detective Chase, Detective Mullen, Detective Church, Detective Schoener, all of whom said that the Defendant Aiken never requested counsel.
Mr. Egger would like you to believe that he did request counsel, only there has been no testimony relative to that; there has been no evidence relative to that.
You are to determine this case upon the evidence that you heard, and there is no reason to disbelieve these many, many officers who testified that he did not make such a request, and that he was warned of all of his rights. (Italics mine.)
The jury, in response to interrogatories submitted to them, stated that they considered the confessions voluntary, and did consider them in reaching their verdict.
*365The majority’s argument, based on Jackson v. Denno,9 378 U.S. 368, 12 L. Ed. 2d 908, 84 Sup. Ct. 1774 (1964), and Townsend v. Sain, supra, has no bearing on this issue since it concludes that the procedure required by Rule 101.20W meets the minimum federal standards as required by those cases. I must agree that it does. But no contention is made in this case, expressly or impliedly, that it does not. Appellant Aiken merely contends that he is entitled to the “safeguards” afforded him under this constitutionally valid rule, and with that contention I also agree.
The majority then cites 3 J. Wigmore, Evidence, § 861, p. 347, for the proposition that a jury may not disregard a confession by measuring it against the “foregoing” legal tests of due process and reject the confession as a judge would if the tests are not fulfilled.
In short, the jury may not determine the admissibility of a confession. Indeed, under Jackson v. Denno, supra, de*366cided subsequent to the quoted passage in Wigmore, the trial jury cannot constitutionally be made the determiner of the admissibility of a confession.
But the fact remains that the jury is the sole and exclusive determiner of the weight to be given evidence, including confessions. 3 J. Wigmore, Evidence, in § 861, quotes approvingly from Burton v. State, 107 Ala. 108, 18 So. 284 (1895), which stresses this very distinction:
“Whether voluntarily made or not, we hold, is a question of law, to be determined by the Court from the facts, as a condition precedent to their admission. Having been declared competent and admissible, they are before the jury for consideration. The jury have no authority to reject them as incompetent. But the jury are the sole judges of the truth and, weight to be given confessions, as they are of any other fact. In weighing the confessions, the jury must take into consideration all the circumstances surrounding them, and under which they were made, including those under which the Court declared, as matter of law, they were voluntary. In weighing confessions, the jury necessarily consider those facts upon which their admissibility, as having been voluntarily made, depends. While there is no power in the jury to reject the confessions, as being incompetent, there is no power in the Court to control the jury in the weight to be given to facts. The jury may, therefore, in the exercise of their authority, and within their province, determine that the confessions are untrue, or not entitled to any weight, upon the grounds that they were not voluntarily made. The Court passes upon the facts merely for the purpose of determining their competency and admissibility. The jury pass upon the same facts, and in connection with other facts, if there are other facts, in determining whether the confessions are true, and entitled to any, and how much weight. The Court and jury each have a well-defined and separate province.” (Italics mine.)
Thus the majority’s quest is again fruitless, for Wigmore, to the extent that his text is applicable to the question presented at all, supports the rule followed in this state, Rule 101.20W(d). Again, that rule provides that after the court has passed on the admissibility of a confession in a threshold hearing, the accused then has the right to present *367that evidence anew to the jury, which is to determine his guilt or innocence, and, in this case, the penalty which shall be imposed upon his conviction.
The majority finally attempts to justify their denial of this right to appellant Aiken on the ground that “reasonable minds could not differ in concluding that the weight and credibility of Aiken’s confessions were not affected by the alleged earlier denial of his procedural safeguards.”
In the apparent realization that such an argument requires more than the mere statement of the conclusion, the majority seek to bolster this stand by contending that the “new evidence” (the fact of Aiken’s request for legal assistance) could not change the jury’s determination because Aiken had, after his request, waived the right as a matter of law!
Aside from the logical indefensibility of such an argument, the most striking thing to me is that, by such a holding, the majority effectively and subtly abrogate the provision of Rule 101.20W(d) entirely! For, if the determination of waiver by the court as a matter of law is sufficient to defeat an accused’s right to present the evidence anew to the jury, then that right can logically exist in no case. The “safeguard” afforded by section (d) of Rule 1Q1.20W exists only after the trial court, in the threshold hearing, has found the confession admissible as a matter of law. In order for the court to make that determination, he must find, as a matter of law, that the accused waived his right to silence, and, unless he was permitted counsel before he confessed, that he waived his right to the assistance of counsel. Therefore, the finding of waiver, as a matter of law, must be made in every case before the court can admit the confession (before the jury can consider the confession), and before the “safeguard” provided by Rule 101.20W (d) comes into play. If the finding of waiver as a matter of law extinguishes an accused’s right to the latter safeguard, it simply did not exist from the beginning.
Finally, the majority holds that “reasonable minds could not differ in concluding that the weight and credibility of *368Aiken’s confessions were not affected by the alleged earlier denial of his procedural safeguards ”10 (Italics mine.) I cannot conceive of an appellate court constituting itself a fact-finding tribunal, competent to assess the weight and credibility a trial jury would, or could, afford relevant evidence.
Furthermore, the failure to present proof to the jury of the fact of Aiken’s request for counsel cannot be charged to this appellant. The evidence simply was not available to him. It could have been made available if, at the time Aiken’s attorneys originally requested an opportunity to audition the tape recording (exhibit 11) under favorable conditions, their request had been granted.
I do not dispute the majority’s conclusion that the actions of the trial court did not constitute an abuse of discretion. But while we need not assess fault, we must recognize the fact that adequate opportunity to audition this tape was not afforded Aiken’s counsel, and, therefore, any failure in this regard cannot warrant a denial of appellant Aiken’s right to present this vital fact to the jury.
Appellant Wheat
I shall discuss several reasons for my belief that the conviction of appellant Wheat was obtained through violation of his constitutional rights, and hence that he, too, must be granted a new trial.
Again, the central issue is whether there was a voluntary, knowing, and intelligent waiver by appellant of his constitutionally guaranteed right to the assistance of counsel.
Since the majority opinion gives scant attention to the relevant factors surrounding appellant Wheat’s interrogation regarding the singularly damning confession of the slaying of James Harp, a more adequate statement of the facts is necessitated here.
*369On Sunday, April 25, 1965, at 7 p.m.,11 appellant Wheat was brought before Judge Hoar, Seattle District Justice Court, where he was advised that he had been charged with the crime of murder in the first degree. A transcript of the proceedings is in the record. It shows that the complaint, signed by the prosecuting attorney, was read to Wheat in open court. It alleged that:
He, the said Antonio Nathaniel Wheat, in the County of King, State of Washington, on or about the 24th day of April, 1965, while then and there, willfully, unlawfully and feloniously engaged in committing, attempting to commit or in withdrawing from the scene of the commission of a felony, to-wit: Robbery, willfully, unlawfully and feloniously did shoot at, toward and into the body of one James Harp, a human being, with a certain deadly weapon, to-wit: .22 caliber pistol, thereby mortally wounding the said James Harp, from which said mortal wounds the said James Harp then and there died;
The court then “advised” the accused Wheat:
[Y]ou have a right to preliminary examination and to waive such examination. You have a right to an attorney or counsel at the preliminary examination and you are also informed that you have a right to make a statement, not under oath, as to the charge against you, and you are not required to make such a statement and that any statement made by you may be used against you. . . . And you are also informed of your right to appear and defend this charge in person or by counsel and that you are entitled to a reasonable time and opportunity to consult with an attorney or counsel, and you are entitled to the right of a trial by jury. (Italics mine.)
Appellant Wheat was then asked if he wished to enter a *370plea to the charge. His significant reply was: “As this is a murder charge, I plead not guilty.”12 (Italics mine.)
Detective Nault, chief of detectives of the King County Sheriff’s Office, testified regarding the detention of appellant Wheat since 3:30 p.m. on April 24. He also testified that he had contacted Deputy Prosecutor Kinzel by telephone at about 2 p.m. on April 25th. Mr. Kinzel testified that he had received the telephone call from Detective Nault at about 2 p.m. and had immediately thereafter attempted to contact Prosecutor Carroll by telephone. Mr. Carroll testified that he had received a telephone call from Mr. Kinzel while at his summer home on Bainbridge Island, and that he had advised Mr. Kinzel to make arrangements to have the defendant brought before a committing magistrate as quickly as possible. Mr. Carroll stated that he took the next boat from Bainbridge Island, arriving in Seattle at about 4 p.m., and he thereafter made arrangements to have his secretary type up the complaint and warrant. He then called Judge Hoar at his home and asked him to come to his courtroom. He stated that he also had asked Mr. Kinzel to contact Louise Sator, a court reporter, in order that she might record the proceedings.
The brief hearing (which lasted 10 minutes) was terminated at 7:15 p.m. with a statement by the deputy prosecutor and the court:
I have nothing further, your honor, and this matter is continued to 9:30 tomorrow morning for the possible appointment of counsel? The Court: Yes. (Italics mine.)
But this attempt to protect appellant Wheat’s rights was, by the subsequent actions of the interrogating officers, made little more than an elaborate charade and frustrated the prosecutor’s attempt to have counsel appointed for Wheat at an early stage of accusatory proceedings.
At about 10 p.m., two detectives of the Seattle Police Department began an interrogation of appellant Wheat in *371the sheriff’s office, which interrogation culminated in the statements implicating Wheat in the robberies of Wolf and Fair. Again, appellant Wheat blamed the actual killing of the victims on appellant Aiken.
Then, between 1 and 1:15 a.m., appellant Wheat was taken to the “interview” room, where appellant Aiken was being interrogated, and was asked there to confirm his statement regarding the Wolf homicide, which had been shown appellant Aiken earlier in his interrogation.13 When Wheat confirmed the statement, and said that he did not wish to change it, appellant Aiken told him it was a “damn lie,” and, having exhausted his attempts to evade the demands of the interrogating officers, gave his first statement to the police, orally, in the presence of Wheat. The statement accused Wheat of the killing of Wolf.14
Appellant Wheat was then taken to another room, where Detectives Mullen and Church and Sergeant Crider commenced an interrogation of Wheat (lasting until 2:45 a.m.) regarding the Harp slaying, the crime with which Wheat had been charged at the proceedings in justice court only a *372few hours before. This interrogation resulted in a confession by appellant Wheat in which, for the first time, he admitted that he, and not Aiken, had fired the fatal shots.
The majority recognizes and approves the rule that any secret interrogation of an accused following the commencement of formal proceedings against him, without the presence of counsel, contravenes the guarantees of federal due process, State v. Moore, 61 Wn.2d 165, 377 P.2d 456 (1963); People v. Waterman, 9 N.Y.2d 561, 175 N.E.2d 445 (1961) ; Massiah v. United States, 377 U.S. 201, 12 L. Ed. 2d 246, 84 Sup. Ct. 1199 (1964); McLeod v. Ohio, 378 U.S. 582, 12 L. Ed. 2d 1037, 84 Sup. Ct. 1922 (1964); 381 U.S. 356, 14 L. Ed. 2d 682, 85 Sup. Ct. 1556 (1965), but then proceeds to deprive the rule of any force and effect by ignoring applicable state law.
I, of course, recognize that the right to counsel may be waived by the accused, if done knowingly and intelligently. But, by some obscure alchemy, the majority opinion attempts to transform the warnings of the privilege against self-incrimination and the right to the assistance of counsel into a waiver of those rights by the accused, and holds that the interrogation of appellant Wheat regarding the crime with which he had just been formally charged, was proper notwithstanding the rule referred to above.
I cannot agree with either the rationale or the result of this holding.
First, this court, in In re Wilken v. Squier, 50 Wn.2d 58, 309 P.2d 746 (1957), set forth the advice that must be given an accused at his arraignment, stating, at 61:
The right of an accused to appear and defend by counsel is expressly guaranteed by Art. I, § 22 (amendment 10) of the state constitution. In furtherance of this constitutional guarantee, RCW 10.01.110 and 10.40.030 imposes upon the court three duties: (1) to inform the defendant that it is his right to have counsel before being arraigned; (2) to ascertain whether because of the defendant’s poverty he is unable to employ counsel, in which event, the court must inform the defendant that the court shall appoint counsel for the defendant at *373public expense if he so desires; (3) to ask whether the defendant desires the aid of counsel. (Italics mine.)
This court concluded that the statute imposed a duty on the court to fully inform the defendant regarding this right to court-appointed counsel, and, without this information or prior knowledge of the right, a defendant could not waive the right “intelligently and competently.” See, also, In re Friedbauer v. State, 51 Wn.2d 92, 316 P.2d 117 (1957); State v. Dechmann, 51 Wn.2d 256, 317 P.2d 527 (1957); In re Aichele v. Rhay, 57 Wn.2d 178, 356 P.2d 326 (1960). In In re Wakefield v. Rhay, 57 Wn.2d 168, 356 P.2d 596 (1960), this court held that an express statement by the accused that he did not wish counsel was insufficient, since, lacking this vital knowledge, such waiver could not have been made “knowingly and intelligently.”
No prior knowledge of this right has been demonstrated in the case of this inexperienced criminal defendant, and it is patently clear that the “advice” given him in the justice court was legally insufficient under the rule above-referred to.
Therefore, the conclusion of the majority that appellant Wheat had been sufficiently warned of his privilege against self-incrimination and his right to the assistance of counsel, is unwarranted and wholly devoid of support in the record before us. The required advice by the court, once formal proceedings have been commenced against him, includes the advice of the right to counsel at state expense if the accused is without funds with which to hire a lawyer. This advice was never given appellant Wheat by the officers or by the court. Under the law existing at the time appellant Wheat was tried, the officers were not required to give this advice, but, under the existing state law, such advice was required to be given appellant by the court.15 The advice *374not having been given, appellant Wheat was without the knowledge prerequisite to a “knowing and intelligent” waiver of the right to counsel at the time the officers, in their post-midnight in-custody inquisition, questioned Wheat regarding the crime with which he had just been charged.
The resulting confession having been utilized to obtain appellant Wheat’s conviction of murder and sentence of death, he must be given a new trial, absent this forbidden confession. I would reverse and remand.
Summary
The critical questions presented by these appeals involve the application of the fifth and sixth amendments to the United States Constitution to the facts in the record before us. In our disposition of them, therefore, this court is bound by the interpretations given these amendments by the United States Supreme Court.
In recent years, we have witnessed an increasing concern on the part of that court for the individual, reflected in a series of decisions which have applied more and more of the protection of the so-called Bill of Rights to the states.
On June 19, 1961, the United States Supreme Court held *375that the Fourth Amendment’s right of privacy was enforceable against the states through the Fourteenth. Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 Sup. Ct. 1684, 84 A.L.R.2d 933.
On March 18, 1963, that court held that the right to counsel guaranteed by the Sixth Amendment was applicable to the states through the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 Sup. Ct. 792. That right has subsequently been applied to the period following the formal commencement of criminal proceedings, Massiah v. United States, supra; McLeod v. Ohio, supra, to the “accusatory” stage, Escobedo v. Illinois, supra, and to the “line-up,” United States v. Wade, 388 U.S. 218. 18 L. Ed. 2d 1149, 87 Sup. Ct. 1926 (1967), and Gilbert v. California, 388 U.S. 263, 18 L. Ed. 2d 1178, 87 Sup. Ct. 1951 (1967).
On June 15, 1964, the Supreme Court held the Fifth Amendment’s exemption from compulsory self-incrimination was also protected by the Fourteenth Amendment against abridgment by the states. Malloy v. Hogan, 378 U.S. 1, 12 L. Ed. 2d 653, 84 Sup. Ct. 1489 (1964).
On April 5, 1965, the Sixth Amendment right of confrontation was applied by the Supreme Court to the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 13 L. Ed. 2d 923, 85 Sup. Ct. 1065 (1965).
These rights, deemed so fundamental as to be required by due process, have been amplified by subsequent decisions of the United States Supreme Court referred to herein. The decisions referred to are binding on this court,16 and, in my opinion, compel the granting of a new trial in these cases before us.
The trial of these cases at bar took place in September and October, 1965, prior to the date of Miranda v. Arizona, supra.
*376[T]he requirements of which, therefore, are not directly applicable, Johnson v. New Jersey, 384 U.S. 719 (1966), although relevant on the issue of voluntariness, Davis v. North Carolina, 384 U.S. 737 (1966). Clewis v. Texas, 386 U.S. 707, 18 L. Ed.2d 423, 87 Sup. Ct. 1338 (1967).
The principles enunciated in Escobedo v. Illinois, supra, however, are directly applicable.
Under the foregoing decisions, the oral and written statements of appellant Aiken, and the final statement by appellant Wheat relating to the Harp homicide, all of which were given in response to impermissible police custodial interrogations, were inadmissible against these appellants at their trial. Their use in obtaining these convictions requires reversal of the respective convictions and sentences of death, and the granting of a new trial.
The statement of appellant Wheat was given after the time his right to counsel arose under the controlling cases of Escobedo v. Illinois, supra, and Massiah v. United States, supra, following his arraignment on the Harp homicide, and with the purpose of securing a further admission of guilt from appellant Wheat regarding that same homicide. This interrogation began about 1:15 a.m. and lasted until nearly 3 a.m., although it was known that Wheat was to be furnished counsel at 9:30 that morning, and the statements were obtained in an attempt (which proved successful) to gain sufficient inculpatory admissions to assure his conviction and the imposition of the death sentence before he could receive the advice of counsel. The officers won the race with the clock and, by the time his counsel was appointed, the principal purpose of having counsel had been frustrated.
As the United States Supreme Court noted in Escobedo, supra at 487:
In Gideon v. Wainwright, 372 U.S. 335, we held that every person accused of a crime, whether state or federal, is entitled to a lawyer at trial. The rule sought by the State here, however, would make the trial no more than an appeal from the interrogation; and the “right to use counsel at the formal trial [would be] a very hollow thing [if], for all practical purposes, the conviction is *377already assured by pretrial examination.” In re Groban, 352 U.S. 330, 344 (Black, J., dissenting). “One can imagine a cynical prosecutor saying: ‘Let them have the most illustrious counsel, now. They can’t escape the noose. There is nothing that counsel can do for them at the trial.’ ” Ex parte Sullivan, 107 F. Supp. 514, 517-518.
Although appellant Wheat was advised by his interrogators in each instance that he had a right to consult an attorney,17 he failed to demand the assistance of counsel. But, under the circumstances, since appellant Wheat lacked the knowledge essential to a “knowing and intelligent” waiver of his right, to hold that his mere failure to request the assistance of counsel constituted waiver would, in truth, make him the “deluded instrument of his own conviction,” and of the jury’s imposition of the death penalty.
Appellant Aiken was arrested near Blaine, Washington, at about 4 o’clock on a Sunday afternoon. His interrogation, after his return to Seattle, continued throughout the early hours of Monday morning. So intent were the officers in securing his admissions regarding the three homicides (with which he was ultimately charged) before he could procure counsel, that they did not permit him to be taken before a magistrate until 11:30 Monday morning (long after that court had opened). They detained him just long enough to get his signature on the last of his unwittingly incriminating statements before counsel could be appointed for him.
Aiken’s interrogation was intense, as is apparent from the tape recording of his first interrogation. Though it is revealing, disclosing several statements which I can only *378consider threatening in every sense of the word, the typewritten transcript of portions of the interrogation fails to convey the coercive atmosphere in which Aiken’s questioning took place. See appendix to this dissenting opinion.
But most important of all, the vital part of his interrogation took place after he had expressly stated his desire to consult counsel, and his requests went unheeded by his interrogators. No argument advanced by the state or by the majority opinion can overcome this important factor. The coerciveness of the interrogation thereafter, with its importunities and threats, was heightened by the fact that Aiken knew he was alone and would have to remain alone in his predicament. No assistance would be allowed him. And there would be no surcease until he “cooperated.”
This tactic has been forbidden by the above-cited applicable decisions of the United States Supreme Court. The resulting confessions were unconstitutionally obtained and unconstitutionally admitted in evidence against appellant. The jury considered them in reaching their verdict, and, in view of the nature of the statements, they may have been crucial in the imposition of the death penalty by the jury. Aiken’s conviction cannot stand on such a basis.
The Supreme Court noted, in Haynes v. Washington, 373 U.S. 503, 518, 10 L. Ed. 2d 513, 83 Sup. Ct. 1336 (1963):
As we said in Rogers v. Richmond, 365 U.S. 534, 541:
“Indeed, in many of the cases in which the command of the Due Process Clause has compelled us to reverse state convictions involving the use of confessions obtained by impermissible methods, independent corroborating evidence left little doubt of the truth of what the defendant had confessed. Despite such verification, confessions were found to be the product of constitutionally impermissible methods in their inducement.”
Of course, we neither express nor suggest a view with regard to the ultimate guilt or innocence of the petitioner here; that is for a jury to decide on a new trial free of constitutional infirmity, .... (Italics mine.)
The same reasoning should apply in the cases before us. I would reverse the convictions and remand each of them to the superior court for a new trial, to be conducted in a *379manner consistent with the requirements set forth by the United States Supreme Court.
Weaver and Hamilton, JJ., and Barnett, J. Pro Tern., concur with Donworth, J.
Appendix To Dissenting Opinion
The following is the transcript of the tape-recorded portion of the interrogation of defendant Aiken as prepared by the court reporter at the direction of the trial judge. Portions of the tape that were unintelligible to the reporter are indicated by asterisks. This tape recording was played only once in the courtroom in the presence of appellants and their counsel at the original 101.20W hearing. It was not played in the presence of the jury due to the fact that neither the court nor counsel was aware that Exhibit 11 contained Aiken’s repeated requests for the assistance of counsel. Cross-examination of the interrogating officers regarding certain portions of the interrogation is included in footnotes.
Transcription Of Police Interrogation Tape #1, Purporting to be Recording of Interview Between Seattle Police Department
Detectives and Defendant Arthur Nathaniel Aiken.
Tape No. 1
Voice: ** * * told you that we had some witnesses. Now we will lay it out for you, tell you just exactly what we do know, and * * * we will explain this to you in detail. You make up your own mind if you want to give us a statement, or if you want to tell us about it. That is up to you.
We have another suspect in custody. The other suspect has been most cooperative. The other suspect has defined in great detail how this thing took place, what time, the location, and who were involved. He maintains that you were one of the parties with him, and he is trying to shoot it back to you.
That’s right. He is putting the finger on you. He is trying to help himself.
Now we have statements, confessions, from Antonio Wheat. He is presently in the King County Jail, in custody. He has gone into great detail. If you want to tell us about it, fine. It is up to you.
A. * * * The other night on the way in * * * Q. We know what he said. We have it all in black and white. He puts the whole thing in your hands. * * * That is one thing we don’t do, is lie. We have no reason to lie. We would defeat our own purpose by lying. You can rest assured we are not. A. * * * Q. You were out of the car. You were in the gas station. A. * * * Q. Tell me, first * * * he walked over to the gas station, he got the key. He went into the rest room. He came back and he jumped back in the car, and you were about half asleep, and you got out of the car. You went and got the rest room key. When you came back from the rest room, you took the guy. A. Me? Q. Yes. Nobody else. Nobody else.
Now do you think that we are still guessing? We got it all, right down the line. Now, do you want to tell us about it?
You asked the attendant for change for a $20 bill. A. I haven’t got a $20 bill. Q. You asked him for it. When he opened the cash box, you said that you would take it all.
*380Now, we are not guessing any more, and we are not playing any games. You want to help yourself, fine. It is up to you.
The only way you can help yourself is by cooperating.[18] A. I don’t know what would help myself * * * Q. What do you *381mean, you don’t know what would help yourself? Just the truth. You better get it off your chest. You better get all of it off your chest. A. * * * I remember going to the * * * and that’s the truth. Q. You just got done saying you were sleeping in the car. A. That’s right. Q. At the station. How do you know * * * that’s exactly what you said. A. * * * Q. Are you under a doctor’s care at the present time? A. No. Q. Do you have all your faculties? A. I believe so. Q. All right. You are not stupid, are you? A. I don’t think so. Q. All right. Don’t insult our intelligence. Please don’t. Don’t sell us short on this at all. A. I’m not trying to sell either one of you short. Q. Don’t place us short. We are laying it all out for you right now, right down the line. You want to give us a statement as to exactly what your activities were in this armed robbery, exactly what they were, you think about it. Exactly what you did. You are going to feel much better when you get it off your chest, whether you realize it or not. You’ve got a family, you’ve got a mother, father; you’ve got sisters and brothers. I A. * * * Q. It takes a pretty big man to admit something. A pretty big man. Wheat is not gaining anything by what he’s telling us. He’s being a man about it. He’s admitted it. He’s implicated himself by admitting * * * A. * * * because I don’t know what happened. Q. You don’t know what happened? What kind of a gun do you own besides the .25? A. * * * Q. That’s right. Let me point something up here at once. All the answers we have got already. All the answers we have got. Any questions we ask you, we know the answers to already. The only reason we ask you these questions is to see what your answer will be, in this way will be determined whether you are lying to us.
Now, we didn’t just go up there and have you picked up for nothing * * * remember this now: we are being absolutely honest with you. We will never lie to you at any time, and don’t you lie to us. Don’t make that mistake.
You are sitting in the driver’s seat right now. If you want to drive, drive. If you just want to take a ride, why you can ride. But I will tell you something: if you think that your guts are a little churned now, a little tight, you try keeping it inside for awhile longer. * * * Don’t you under-estimate our ability or our intelligence. We are not sitting here under-estimating yours. A. * * * Q. You are when you tell us that you don’t know anything. * * * please, don’t * * * A. * * * I don’t know myself. Q. Yes, you do. I asked you if you had another gun besides that .25 automatic. Answer that question. A. Not at present. Q. What do you mean, “not at present”? A. * * * Q. What kind did you have before? A. I had a .22. Q. * * * A. * * * Q. .22 what? What did it look like? What did the gun look like? A. * * * Q. What color was it? What color was the handle? A. * * * Q. Was the handle chipped? What happened to the gun? A. Stolen. Q. When? A. * * * Q. * * * I am going to stop you right now. Don’t make the mistake of continuing to lie. Now, we have been pretty fair with you. Now, no ... at all. We have been fair. You stop and take that into consideration. Just take that *382into consideration. No half-truths, please. You are going to have to get it off your chest. There is no question about it. You are going to have to get it all off your chest. O.K.
We have got Wheat. We have got the statements. We have got everything we need. Now, you make up your own mind whether you want to be cooperative or you want to be uncooperative. The thing that cooperation does is help you. It doesn’t help us. We’re giving you the benefit of the doubt, as far as your cooperation.[19]” A. * * * Q. We told you that we know what is going on. A. * * * Q. This what? A. * * * Q. You were not surprised. You were right there. You were right there. It shouldn’t be surprising to you at all. It shouldn’t be strange or surprising. It should be very, very vivid in your mind, exactly what happened; what took place. * * * One other statement. Three of you went to the * * * together; three of you. A. Who? Q. The three of you. You know. You were there. You were with him in the gas station. * * * He thinks you are talking about Brown, too. No, we have got this all ironed out. Brown was home at 1:30. You want facts. A. * * * Q. All right. All right. You and Antonio and the victim went into the restroom together. Antonio went first. When he first pulled in to the gas station. To the rest room. He went in and told the attendant he wanted the key to the rest room; went into the restroom; came back; talked to a couple of people; went back to the car. Two kids came in, in a car, but they left again. When they left you got out of the car, you went in the gas station, both of you got out of the car, you went in the office, Antonio stood outside in the front. * * * attendant. The three of you walked out to the * * * you asked the attendant for change for a $20 bill. The attendant opened the cash box. You said, “I will take it all.” After you got the money, the three of you * * * rest room. You gave the attendant the key to the rest room * * * the attendant said, “What are you going to do?” The three of you went into the rest room. Now do you think we are guessing? A. * * * Q. Do you know what ballistics are, Art? Do you know what “ballistics” means? This is when they run a comparison test on a shell that’s been—or a gun that’s been fired. If I were to shoot you and later on they were to pick up the gun * * * blood ’1: * * they could positively identify it as coming from that gun. No two guns fire the *383same. It is like a fingerprint—no two are the same. They can positively identify which weapon the projectile came from. You understand that? All right. You want to tell us about it? We are not fishing, we are telling. We have got much, much more. A. * * * Q. No, no, no. This isn’t the gun. It is not the gun at all. Not the one that we took off you. * * * silver .22 automatic, made in Spain. * * * You are going to feel better when you tell us about it, * * * A. * * * Q. You can’t? A. * * * Q. * * * A. Either one. Q. You want to read the statements? A. * * * Q. * * * You can read them yourself. Have you read them? I want you to tell us exactly what happened. All right? A. * * * Q. * * * As far as your case is concerned. I don’t feel should be shown that particular statement.
All right. Now, when we are talking to you about this particular thing, we are not talking about one job, we are talking about that many.
I will show you a statement on one of those jobs, not the one we are talking about, to show you we are not lying about any of this. We know exactly what went on in all of them, and we know what went on, because we have got the physical evidence to back it up. And this is corroborated by Wheat’s statements. You are implicated in every single job. Don’t under-estimate us. We have got other proof of the fact that the weapon is your gun. Not from one person, but from at least four.
Now, this is from one job, not the one we are talking about. You can’t read it or understand it, I will read it to you. Can you make it out all right? A. Yes. Q. All right. Want to sit down? A. * * * Q. You tell us the truth then if this is a lie.[20] A. * * * >Q. This matches all the physical evidence. The guy is not lying. A. He is lying. Q. We have got the physical evidence at the scene. A. He is lying. Q. What is he lying about. Tell us what he is lying about.[21] A. * * * Q. What is he lying about? A. He is lying. Q. Where? Show us where he is lying in here. One place. One place that he is lying. Just one place. Just one place that he is lying. A. * * * Q. You don’t cooperate with us, you will be charged on every single count. This isn’t a threat or anything like this. It’s a promise.[22] We are not * * * we are not mad at you * * * *384all we are concerned about is the truth * * * we are showing you our hand. This is a * * * you can’t beat it. A. Counterfeit Q. You think this is counterfeit, this statement? It is no counterfeit. A. * * * Q. It can’t be. It matches everything; everything at the scene. It identifies photographs and everything, step by step. Do you know how tall you are? We know how tall you are. You are five foot three inches. Do you have any idea how easily, scientifically we can tell how tall the subject was * * * that shot * * * in the head. A. * * * I didn’t do it. Q. It is your gun. You had the gun at the time. It couldn’t have been him. He is over six feet tall. A. * * * Q. You didn’t do it? A. I didn’t do it. Q. All the witnesses place you with him * * * Arthur Aiken. Would you show Arthur where he is mistaken? He says it is counterfeit. He don’t know anything about it. A. Here’s the whole thing. Wheat * * * Q. Now, you haven’t had a chance to give your side of it. Maybe you were just along and Wheat did the killing. We don’t know this. Everything right now is pointing it right on you, and these are very serious charges, homicide and murder. If Wheat is lying about the statements, that you didn’t kill him, if Wheat killed him, we want to know it. * * * statements to that effect * * * along with these statements, but we certainly want to *385listen to your side * * * charging with murder * * * not until you have a chance to tell us. A. Well * * * Q. We discussed Wheat’s * * * A. * * * Q. There are two sides to every story, Art. We can’t pretend to read your mind. * * * A. * * * Q. You didn’t do this * * * A. * * * You ask me to verify the statement * * * Q. Sure * * *_ ask whether if he review this statement * • * we are not going to lie to you. This is too serious. We don’t expect you to lie to us either. * * * A. I know * * * Q. This is what we are asking. We are asking you to give a true story. How long have you known Wheat? A. Oh, not * * * Q. How long? A. * * * Q. Where do you come from? A. Washington, D.C. Q. * * * Bought your automatic, Seattle Sporting Goods store? A. * * * Q. * * * Box it came from * * * it is not that this is burglary or larceny or auto theft * * * this is more than * * * we want to make a fair decision on this * * * stop the car * * * they ask who was in the car. A. * * * identification. Q. Have you heard any news broadcasts, or read in any newspapers concerning * * * A. * * * Q. * * * A. * * * Q. Where? A. * * * Q. Oh? Did you see your girl friend * * * A. * * * Q. * * * Do you have a girl friend in Seattle? A. * * * Q. Hunh? A. Don’t know anyone in Seattle. Q. You know Wheat’s girl friend? A. I met her. * * * Q. * * * How do you like Seattle? A. * * * Q. Not the big city that Chicago is? A. * * * Q. What? A. * * * Q. How about Washington, D.C.? Is that a pretty good town? A. * * * Q. They treat you any better here than they do in Chicago, as far as the race problem? A. I’ve never been in Chicago. Q. I mean Washington, D.C. * * * Yeah, come in. Yes. * * * A. * * * Q. Sit over here, Art. * * * A. Did you say * * * Q. * * * A. * * * You say these things? Q. * * * A. You know it’s a dam lie. Q. * * * I had a * * * but I didn’t use it * * * (At this point, tape became completely unintelligible) Q. So you know what you are doing. * * * A. I say I don’t give a dam, who brought up the subject —he did—I will pull the gun out. Q. Excuse me, are you talking about * * * A. * * * Q. You are talking about this one here? A. And the guys went down * * * so went back home. Q. Who went back home? A. * * * with him, all three went back. So he told me, and I told him no, I had, and I * * * Q. Who fired the shots? A. He did. Q. Who? A. Tony. Q. What is his name? A. Tony Wheat. Q. Did you ever read the name of the attendant in the paper later on? A. No. Q. Where was the station at? A. All I know is on Empire Way somewhere. Q. What was the name of the station? A. I believe it was * * * Q. How much money did you get * * * A. * * * Q. What happened there? Were you standing there * * * What did the man say? * * * A * * * Q. Did you hit the man with your hand? A. * * * Q. Who did? A. As far as I know, didn’t * * * Q. How was the man dressed? A. I paid no attention, other than the fact that he had on a service station uniform. * * * Q. Was he an old man or a young boy? A. He was * * * Q. In age, how old was he? A. I don’t know. Looked like 20 something. Q. Was he * * * A. 1 thought he was a * * * man with * * * Q. Do you remember what he said before Antonio shot him? A. Well * ~ * Q. Just before he started praying, do you remember what you told him? A. He was saying something about being religious or something—Q. What else did he say? A. * * * Paid no attention to him. Q. Antonio, do you agree with that? A. * * * Q. I was just wondering now if you want to change your statement, or if you wanted to stick with your statement. Is that all you wanted to ask him now? A. That’s all. Q. * * * O.K. Sit over- here. To *386give you a chance to give your side * * * Now, do you want to give the Sgt. here a statement * * * Now. A. * * * Q. * * * A. * * * Q. * * * Your middle name? A. Nathaniel. Q. Last. A. N-a-t-h-a-n * * * Q. And your last name? A. Aiken, A-i-k-e-n. Q. How old are you? * * *
December 12, 19, 1967. Petitions for rehearing denied.
The written transcript of Aiken’s interrogation, made by the court reporter from the tape recording admitted in evidence as exhibit 11, is included in this dissent as an appendix. Although incomplete, it illustrates the compelling atmosphere in which Aiken’s confessions were taken from him. A full appreciation of Aiken’s predicament, however, can be gained only from hearing the recording itself.
I think it idle to speculate as to which of several coercive elements of an incommunicado interrogation “result” in the confession. The confrontation with Wheat and the failure of Aiken’s attempt to get Wheat to retract his statements may have been the “straw that broke the camel’s back,” but its effect cannot be considered apart from the circumstances in which it occurred.
This case contains yet another element in common with Escobedo, the ignorance on the part of the accused of the consequences of his admission of participation in the robberies. In Escobedo, supra at 486, the United States Supreme Court pointed out that: “Petitioner, a layman, was undoubtedly unaware that under Illinois law an admission of ‘mere’ complicity in the murder plot was legally as damaging as an admission of firing of the fatal shots. Illinois v. Escobedo, 28 Ill.2d 41, 190 N.E.2d 825. The ‘guiding hand of counsel’ was essential to advise petitioner of his rights in this delicate situation. Powell v. Alabama, 287 U. S. 45, 69.”
Here, in addition to this presumption, there existed what I can only interpret as deliberate misleading of the interrogated Aiken on this point. During the interrogation, after Aiken had been shown the statement by Wheat accusing him (Aiken) of the actual shooting of Wolf, and after Aiken’s repeated requests for counsel had gone unheeded, an officer told Aiken: “Now, you haven’t had a chance to give your side of it. Maybe you were fust along and Wheat did the killing. We don’t know this. Everything right now is pointing it right on you, and these are very serious charges, homicide and murder. If Wheat is lying about the statements, that you didn’t kill him, if Wheat killed him, we want to know it ... . statements to that effect . . . along with these statements, but we certainly want to listen to your side . . . charging with murder . . . not until you have a chance to tell us.” (Italics mine.)
In my opinion, such a statement, made to this lay defendant under all these attendant circumstances, can bear but one interpretation in the mind of that defendant—that the admission of implication in the *359robbery alone is not an admission of guilt of first-degree murder—and that participation in the robbery is a separate offense, legally, from participation in the homicide. The officer knew better. I deem such deliberate misleading of the defendant wholly impermissible.
The trial court also noted in this regard that “if they [the officers] had heard an audible or intelligent [sic] request or a desire to remain silent, the interrogation would have stopped.” This kind of speculation as to what would have been done “if” has no place in a trial court’s findings of fact.
Highly significant, but overlooked by the majority, is the finding of the trial court that “defendant Aiken was not close to the microphone,” which, nevertheless, picked up his spoken request for counsel.
Even casual acquaintance with the mechanics of recording shows that this fact has no probative value in determining the intelligibility to others in the room where the recording was made. Our own experience with oral arguments before this court serves as apt illustration. All oral arguments before this court are recorded on magnetic tape. Counsel, standing at the podium before the court can be clearly heard by the members of the court sitting at the bench. He can also be “heard” by the microphone which is placed immediately in front of him. However, when he steps to the exhibit board, though he can still be clearly heard by the members of this court, he can no longer be “heard” by the microphone. Upon replay of this tape in chambers, counsel’s voice, *360while he stood at the exhibit board, is inaudible, or barely audible. Following the trial court’s analysis, one would have to conclude, though incorrectly, that the court could not hear that portion of counsel’s argument.
Aiken made his requests aloud, sufficiently so that a microphone, placed some feet away, picked up the request equally as well as it did many of his statements which were heard and responded to by his interrogators. He repeated his request for counsel at least twice, and his desire to terminate the interrogation at least once.
The majority lays great stress on the many times Aiken was told that he was entitled to the assistance of counsel. But such advice is no more than the prerequisite to waiver a “protective device to dispel the compelling atmosphere of the interrogation.” Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 Sup. Ct. 1602. Waiver can only exist as to a known right, and until an accused is so advised, the right is deemed unknown to him and no waiver can occur.
But from the fact that this prerequisite to waiver exists, i.e., the accused was “warned of the right,” it does not follow that there was, in fact, waiver. Waiver, again, is the knowing relinquishment of the known right.
Additionally, I cannot conceive of the warnings given here, however often they were repeated, being characterized as “effective” as is required by the Supreme Court in Escobedo.
The purpose of the warnings is (1) to overcome the inherent pressures of the interrogating atmosphere, and (2) to “show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it.” Miranda v. Arizona, supra. And, of course, unless the latter purpose is fulfilled, the former cannot be. The warnings given in this case, followed by the effective denial of that very right which Aiken tried to exercise, fails in both respects. I cannot agree, therefore, that Aiken was ever “effectively” advised of either his right to counsel or his right to remain silent.
Jackson v. Denno involved a challenge to the constitutionality of the so-called “New York” confession rule under which, if there existed a factual conflict in the evidence as to voluntariness upon which reasonable men could differ, the judge left the question of voluntariness to the jury who determined the admissibility of the confession, as well as the guilt or innocence of the accused. The Supreme Court held that the disputed procedure denied the defendant due process of law. However, express approval was given in that case to the procedure followed in Washington, of giving the question to the jury after the threshold determination of legal admissibility was made by the court. In a footnote, the court said: “Once the confession is properly found to be voluntary by the judge, reconsideration of this issue by the jury does not, of course, improperly affect the jury’s determination of the credibility or probativeness of the confession or its ultimate determination of guilt or innocence.” (Itailcs mine.)
The majority quotes from Jackson to the effect that Jackson was not entitled to a complete new trial automatically, including a retrial of the issue of guilt or innocence. The reason was obvious in that case. No evidence was shown to exist which had not been before the jury in the first trial.
The majority in the case at bar states, without explanation, that “The rule . . . applies with equal force to claims of involuntariness based on new evidence.” The citation to Townsend v. Sain, supra, is wholly inappropriate, that case having dealt only with the duty of a federal district court to hold an evidentiary hearing on petition for habeas corpus and concluding that, under the facts of that case (which included new evidence of a kind), such a hearing must be held.
This euphemism refers to appellant Aiken’s right to counsel, characterized by the United States Supreme Court as “too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” (Italics mine.) Glasser v. United States, 315 U.S. 60, 76, 86 L. Ed. 680, 62 Sup. Ct. 457 (1942).
Appellant Wheat had, prior to that time, and as the result of several successive interrogations, given three statements. The first was an innocuous statement of his activities on April 24, 1965, and contained no reference to the Harp robbery or homicide. In the second and third, however, Wheat implicated himself in the robbery while blaming the shooting on Aiken.
It is difficult to conclude, in the face of this simple, eloquent expression, that appellant Wheat understood that, by confessing the implication in the Harp robbery, he had also confessed guilt of the homicide. See my discussion regarding appellant Aiken in footnote 3.
Interestingly enough, while it is stated by both the majority opinion and the trial court that it was the “confrontation” with Wheat that “caused” Aiken to confess, no mention is made of the fact that Wheat was also involved in the confrontation, and was accused by Aiken of having been the triggerman. The confrontation cannot conceivably be held to have been at the request of appellant "Wheat.
This very factor was given significant weight by the United States Supreme Court in Escobedo v. Illinois, supra, the court there stating, in footnote 5, that: “Although there is testimony in the record that petitioner and his lawyer had previously discussed what petitioner should do in the event of interrogation, there is no evidence that they discussed what petitioner should, or could, do in the face of a false accusation that he had fired the fatal bullets.”
It seems strange that the majority can find this situation so compelling as to induce a confession by one, and yet be so innocuous in the case of the other.
The trial court and the majority opinion here again engage in illogical analysis and conclude that appellant "Wheat gave this “correcting” statement only “after laboring with his conscience for ‘putting the finger’ on Aiken as the one who had fired the shots,” a conclusion which seems to me wholly out of place when applied to one who is, throughout, pictured as a callous killer!
The United States Supreme Court, in Miranda v. Arizona, supra, has placed the responsibility on the interrogating police officers to advise the suspect of his right to court-appointed counsel, stating, at p. 473, that: “In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if *374he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent—the person most often subjected to interrogation—the knowledge that he too has a right to have counsel present. As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it.” (Footnotes omitted.)
This language bears a remarkable resemblance to the expression of this court in In re Wilken v. Squier, supra at 62, in which it was pointed out that “Merely asking the defendant whether he wants a lawyer does not convey the information that he is entitled to a lawyer at public expense if he is an indigent person .... Thus, an indigent defendant’s waiver may be made under the mistaken impression that, since he cannot afford to pay a lawyer, he cannot have legal representation. (Italics mine.)
Canon 3 of the Canons of Judicial Ethics provides that: “It is the duty of all judges in the United States to support the federal Constitution and that of the state whose laws they administer; in so doing, they should fearlessly observe and apply fundamental limitations and guarantees.
It is also noted that each of the statements of these appellants contained a declaration that they had been advised of, and understood their rights, and that the statements were voluntary. But the Supreme Court, in Miranda v. Arizona, supra at 492, has noted that: “The mere fact that he signed a statement which contained a typed-in clause stating that he had ‘full knowledge’ of his ‘legal rights’ does not approach the knowing and intelligent waiver required to relinquish constitutional rights. Cf. Haynes v. Washington, 373 U.S. 503, 512-513 (1963); Haley v. Ohio, 332 U.S. 596, 601 (1948) (opinion of Mr. Justice Douglas) .”
On cross examination, Detective Chase testified as follows:
“Q. Referring to page 2, line 30, who is asking that question? A. I believe that Detective Mullen asked the question, but I can’t be positive. Q. And the line I am referring to reads, ‘The only way you can help yourself is by cooperating.’ A. Yes. Q. What did you people mean by ‘cooperate’, giving a statement? A. Well, I don’t recall exactly who asked the question, Counsel. Q. Well, my question now is, what did you people mean by ‘cooperating’? A. Well, had I said this I would have assumed that the defendant would have been aware that what we meant by cooperation was the fact that he would like to get the investigation completely cleaned up. Q. And when you said, when it was told him that the only way he could help himself is by cooperating, you wanted him to give a statement regarding these things; isn’t that correct? A. Well, we wanted to know what his implication or involvement was in the crimes, yes. Q. You wanted him to tell you about them? A. Yes. Q. And Mr. Aiken did tell you about it? A. Yes. Q. Can you suggest to us now how he managed to help himself by doing that? A. I don’t know how he has managed to help himself. Q. Well, he hasn’t helped himself at all, has he?”
On cross examination, Detective Mullen testified:
“Q. Would you just for the moment turn to page 2 of the transcript? A. 2? Q. Line 30. Calling your attention to line 30. A. Yes, Counsel. Q. Did you detect on the tape that that was your voice that said, ‘The only way you can help yourself is by cooperating’? A. I do not believe that I made the statement, Counsel. Q. Well, you will concede that somebody made it? A. If it is here and it is on the tape, somebody had to make it, Counsel, yes. Q. Do you know what they meant by ‘cooperating’? A. No, I do not, Counsel. Q. Well, if you said it did you mean that you make a statement? Mr. Kinzel: We will object to that. He said that he didn’t say the statement. The Court: Well, he may answer if he understands. A. I cannot answer, Counsel, because I don’t believe that I made that statement. Q. (By Mr. Egger) Detective Mullen, are you telling us that you do not know what it means to say ‘cooperate’? A. Yes, Counsel. Q. You do know what it means? A. Yes. What does it mean? A. It all depends upon what your interpretation would want it to mean, Counsel. Q. Well, you are interrogating somebody about, I believe, one count of murder and you are saying, now, ‘You cooperate,’. What does it mean to you when you say ‘you cooperate’? A. You would like them to be truthful, entirely truthful. Q. Tell the truth? A. That is right. Q. Give a statement? A. That is correct. Q. All right. Now, he did cooperate, didn’t he? A. May I clarify this, Counsel, please, at this time? The Court: Yes, go ahead and answer it any way you wish. A. At this particular point in our investigation, we did not think that he was; at this particular point in our investigation, to the best of our knowledge, what information we *381had, Mr. Aiken was implicated in the Harp homicide, and this is what —and this is what it was in reference to. We had reason to believe that he was implicated in the Harp homicide. Certainly thereafter we found out that in this particular phase he was telling us the truth, and Wheat certainly thereafter revealed that he, and he alone, committed the Harp homicide, and at this particular point we were not aware of this. Q. Well, do you know how Mr. Aiken could help himself by cooperating? A. Peace of mind, Counsel.”
On Cross examination, Detective Chase testified:
“Q. Would you refer to page 5, lines 18 through 31. Who was doing the talking there? A. Line 18, Detective Mullen I believe was doing the talking. Q. Referring down to line 26: ‘We have got everything we need. Now, you make up your own mind whether you want to be cooperative or you want to be uncooperative. The thing that cooperation does is help you.’ Now, again the cooperation you are talking about is him giving a statement, isn’t it? A. We were interested in his story as to what happened, yes. Q. He was told cooperation would help him, correct? A. The statement was made ‘The thing that cooperation does is help you. It doesn’t help us.’ Q. And he cooperated with you? A. Yes. Q. Once again, could you suggest to us how he managed to help himself by cooperating? A. I don’t know. Q. Did you have any idea at that time how he could help himself by cooperating? A. Maybe for his own peace of mind, that is all. Q. Do you believe that there is an implied promise in that statement if he does cooperate it is going to be of some assistance to him? A. There wasn’t anything meant to be a promise, no implied promise in that statement.” *384position at all to say what if any count he would be charged on, cooperate or no cooperation? A. No, not at that— Q. The matter of charging is entirely up to the Prosecuting Attorney, isn’t it? A. That’s correct. Q. Why was the question of whether or not Mr. Aiken would or would not be charged brought up to him by you people then? A. Well, I don’t know why Detective Mullen asked him that particular question. I didn’t ask it.”
Detective Mullen, on cross examination, testified:
“Q. . . . Now, isn’t it true that the words that show here say, ‘You do not cooperate with us, you will be charged on every single count. This isn’t a threat or anything like this. It’s a promise’? A. Yes, Counsel. Q. Did you say that? A. I listened to the tape and it sounds like my voice, and I believe I did say this, Counsel. Q. Did you meant that? A. It was a statement that was made yes. Q. You did mean it? A. I believed that the defendant would be charged on every single count, yes. Q. If he didn’t cooperate with you? A. I did not say ‘if’, I do not believe, Counsel. Q. Isn’t it true that before what is said here, it shows on this transcript, as you heard the tape a while ago, this tape clearly indicated that you said, ‘Tell you what, if you don’t cooperate with us, you will be charged on every single count.’? A. If this is what is on the tape, Counsel, and if I said that, then this is what I said. Q. And you now concede that you meant what you said? A. I assumed that he would be charged on every single count. It was not made as a threat. A. Well, it was put in such a way that if he didn’t cooperate you would, and if he did you wouldn’t, isn’t that true? Mr. Kinzel. I object. That is argumentative. The Court: Let him answer. A. Repeat the question, Counsel, please. Q. (By Mr. Egger) Isn’t it true that the way it was put to him was that if he didn’t cooperate you would charge him with all three counts, but if he did you wouldn’t? A. No, counsel. This is why I made the statement, as I believe it, as I termed it, that it wasn’t meant as a threat.”
and 21 The reporter’s transcript indicates that the response of defendant Aiken is unintelligible at these points. However, as stated in the foregoing opinion, it is at these points that defendant Aiken’s requests for counsel can be heard on the tape.
On cross examination, Detective Chase testified:
“Q. All right. Now, referring to line 8, who is asking that particular question? A. Detective Mullen. Q. And the question is, ‘You don’t cooperate with us, you will be charged on every single count. This isn’t a threat or anything like this. It is a promise.’ Don’t you consider that a threat of a kind? Mr. Kinzel: I will object to that. The Court: He may answer. A. I wouldn’t consider it a threat due to the situation. There was no threat meant by that question. Q. No threat meant by saying ‘If you don’t cooperate with us, you will be charged on every single count.’? A. No. Q. I see. Mr. Chase, what is the implied promise there if he does cooperate? A. I don’t see any promise. Q. Isn’t it implied that if he does cooperate he won’t be charged on every single count? A. I don’t understand it that way. Q. You didn’t intend for Mr. Aiken to understand it that way either? A. I didn’t tell Mr. Aiken what it was. Q. As a matter of fact, were you or Mr. Mullen in any