The opinion
ON REHEARING
LAWSON, Justice.
We adhere to our holding in the original opinion that the trial court committed reversible error in overruling the defendant’s objections to the statement made by the County Solicitor in his argument to the jury: “And yet I tell you that his fresh *292 print was on that window shade. I tell you that it is true, his print was on that window shade and he knew it was on there.”
In brief filed in support of the State’s application for rehearing appears the following: “In the event that this Honorable Court should overrule and deny our motion for rehearing, the appellee respectfully requests this Honorable Court to extend the opinion of March 14, 1968, to direct the trial court in the applicability of the Miranda rule to second trial.”
As pointed out in our opinion on original deliverance, the Supreme Court of the United States in Johnson v. State of New Jersey, 384 U.S. 719 , 86 S.Ct. 1772 , 16 L. Ed.2d 882 , decided on June 20, 1966, held that the rule governing the admissibility of a confession announced in Miranda v. State of Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 , had to be applied “only to cases in which the trial began after the date of our decision one week ago.” (June 13, 1966)
In so far as we are advised, the Supreme Court of the United States has not resolved the question as to whether the Miranda warning requirements, a prerequisite for the admissibility of a confession, are to be applied to retrials occurring after June 13, 1966, of cases which were originally tried prior to the Miranda decision and, of course, that question can be resolved finally only by the Supreme Court of the United States.
However, other courts, federal and state, have written to or taken cognizance of the question. They are not in agreement.
In Gibson v. United States, 363 F.2d 146 (Fifth Circuit, 1966), the court reversed a pre-Miranda conviction involving a Dyer Act violation. The defendant had made statements and admissions to an FBI agent and on remandment the court indicated that the statements “must now hurdle the barriers” set forth in Miranda.
The United States Court of Appeals for the Third Circuit in Government of the Virgin Islands v. Lovell, 378 F.2d 799 (1967), in a footnote reference indicates that if the case had to be retried, then Miranda must be applied and cited the Gibson case, supra.
See also United States v. Pinto, 259 F. Supp. 729 (D.N.J.1966), aff’d Per Curiam, 374 F.2d 472 (Third Circuit, 1967).
In Amsler v. United States, 381 F.2d 37 (Ninth Circuit, 1967), this federal court observed “without deciding” that Miranda should be applied in the retrial of a pre-Miranda conviction.
In State v. Brock, 101 Ariz. 168 , 416 P. 2d 601 , the Supreme Court of Arizona held that the subsequent retrial of a pre-Miran-da first degree murder conviction which it reversed should be subject to the principles enunciated in Miranda. To like effect are the following state court decisions: People v. Doherty, Cal., 59 Cal.Rptr. 857 , 429 P.2d 177 ; State v. Ruiz, 49 Haw. 504 , 421 P.2d 305 ; State v. McCarther, 197 Kan. 279 , 416 P.2d 290 ; Creech v. Commonwealth (Ky., 1967), 412 S.W.2d 245 ; State v.' Jackson, 270 N.C. 773 , 155 S.E.2d 236 ; State v. Shoffner, 31 Wis.2d 412 , 143 N. W.2d 458 ; People v. Sayers, 28 A.D.2d 227 , 284 N.Y.S.2d 481 .
On the other hand, a few state courts have held, in effect, that the requirements of the Miranda case do not govern retrials occurring after June 13, 1966, of cases that were originally tried prior to that date, the effective date of Miranda. Jenkins v. State (Del.), 230 A.2d 262 ; People v. Worley, 37 Ill.2d 439 , 227 N.E.2d 746 ; State v. Vigliano, 50 N.J. 51 , 232 A.2d 129 ; Commonwealth v. Baity, 428 Pa. 306 , 237 A.2d 172 .
Even if we were inclined to agree with the holdings of the cases last cited, our conclusion would not be binding on the federal courts. We must face reality. Since the United States Circuit Court of Appeals for the Fifth Circuit in the Gibson case, supra, held, in effect, that the Miranda rule applies to retrials occurring after; June 13, 1966, of cases which were origi *293 nally tried prior to the Miranda decision, we entertain the view that the safer course for the trial courts of this state to follow until the Supreme Court of the United States has finally determined the question is to comply with the Gibson case, supra.
If Smith is retried and convicted without the rule of the Gibson case being applied, and if we affirm the judgment of the court below on appeal to this court by Smith, our action would be altogether unavailing. Smith, under Faye v. Noia, 372 U.S. 391 , 83 S.Ct. 822 , 9 L.Ed.2d 837 , and Townsend v. Sain, 372 U.S. 293 , 83 S.Ct. 745 , 9 L. Ed.2d 770 , could institute habeas corpus proceedings in a United States District Court and that court would, no doubt, feel compelled to follow the holding of the United States Court of Appeals for the Fifth Circuit in the Gibson case, supra.
The opinion is extended and the application for rehearing is overruled.
LIVINGSTON, C. J., and COLEMAN and KOHN, JJ., concur.