The opinion
BRETT, Judge
(dissenting).
I dissent to this decision, because I believe it should be reversed and remanded for a new trial.
First, I believe the record amply supports defendant’s contention that he was denied advice of counsel when he was taken to the District Attorney’s office for interrogation. Therefore, under the facts presented, I believe defendant’s constitutional right to counsel was violated. The majority opinion admits that “each individual has the right to remain silent and to have counsel present at interrogation” but goes on to assume that counsel presented himself at the “Star Chamber” after the interrogation' was concluded. I do not understand the record to be that. Mr. Phillips went to the courthouse after Mrs. Hogan called him, soon after they reached the Sheriff’s Office.
The Jackson-Denno hearing during trial revealed that Mrs. Hogan called Mr. Fred Phillips to come to the Sheriff’s Office to assist her and her husband. Mr. Hogan was already in the District Attorney’s Office being interrogated, when she made three telephone calls. She first called two other attorneys, both of whom were not available. Then she called Mr. Phillips. After a discussion with Mrs. Hogan, Mr. Phillips went to the District Attorney’s Office, knocked on the door, and asked to talk to Mr. Hogan. Assistant District Attorney Garrette met Mr. Phillips outside the door, talked to him a moment, went back in and had some conversation with Mr. Hogan. He then returned to Mr. Phillips and advised him that Mr. Hogan did not want Mr. Phillips to represent him. Subsequently, to protect himself, Mr. Gar-rette asserted that Mr. Phillips had been retained by Mrs. Hogan and was not the attorney for defendant.
The admissions obtained by the District Attorney under such “Star Chamber” circumstances was the evidence that sustained the conviction.
At the Jackson-Denno hearing, the defendant testified that he did not accept the legal services of Mr. Phillips because he was told not to accept his services by his interrogators. On direct examination, Mr. Hogan related his conversation with Mr. Garrette that night concerning whether or not he should accept the legal assistance of Mr. Phillips, as follows:
“Q. Would you relate to the Court that conversation to the best of your memory ?
A. Butch Garrette says, ‘There’s somebody outside that’s awfully nervous.’ And I said, ‘Why would anybody outside be nervous ?’ I said, ‘I’m the one that’s arrested.’ And he said, ‘Fred Phillips is out there,’ and I said, ‘There ain’t no reason for him to be nervous.’ He said, ‘Well, do you want him as your lawyer?’ he said, ‘Wait a minute before you answer this question,’ he said T want to tell you that you might be in jail and him still walking the streets if you have him as your lawyer.’ ” (Tr. 148)
*1036 At the hearing before Judge Smith on March 12, 1973, Mr. .Garrette was asked:
“Q. And do you recall making a statement to Mr. Hogan: ‘That if Fred Phillips represented him, that Mr. Hogan would go [to] the penitentiary and Fred Phillips would be walking the streets free ?’
A. NOT IN THOSE WORDS, BUT THERE WAS A CONVERSATION TO THAT EFFECT.” (Emphasis added.) (Tr. Mar. 12, 1973, p. 76-77).
At page 100 of the March 12th transcript, the District Attorney inquired of Mr. Garrette, on re-cross examination: “Did you ever at anytime threaten to send him (Mr. Hogan) to the penitentiary if he employed Mr. Phillips ?” Mr. Garrette replied, “Well, if I did, I didn’t mean it that way. He could have taken it that way, I can see why, because we were discussing Fred Phillips quite a bit.”
This record is replete with indications that the defendant was coerced into refusing the legal assistance of the attorney engaged by defendant’s wife. Defendant was in custodial interrogation and when the attorney engaged by defendant’s wife presented himself to consult with the defendant, the attorney should have been permitted to advise his client. But instead, the Assistant District Attorney informed the defendant of the attorney’s presence outside and warned him against the attorney in a manner which even the prosecutor himself admitted could have been interpreted as a threat to send defendant to prison if he employed the attorney. (Tr. of Proceedings on March 12, p. 100).
Justice Sutherland stated in Berger v. United States, 295 U.S. 78, 88 , 55 S.Ct. 629, 633 , 79 L.Ed. 1314 (1935):
“(A Prosecutor) is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.
. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every ligitimate means to bring about a just one.”
I believe the actions of the prosecutors were improper and should not be treated so lightly by this Court.
Secondly, I believe the majority opinion misconstrues the law announced in previous decisions of this Court, concerning the limited purpose for admitting evidence of other crimes. In Green v. State, Okl.Cr., 385 P.2d 820 (1963), which was reversed because the jury instruction was not given, this Court quoted from Doser v. State, 88 Okl.Cr. 299 , 203 P.2d 451 (1949), which also quoted with approval the statement of law from State v. Rule, 11 Okl.Cr. 237 , 144 P. 807 (1914), as follows:
“ ‘Where evidence is offered tending to prove that the defendant has committed an offense other than that for which he is on trial, good practice requires that the prosecuting attorney should state the purpose for which the evidence is offered, and, if it is admissible for that purpose, the trial court should instruct the jury as to the purpose for which they may consider it.’ ”
“And the Court added:
‘And we are of the opinion that such instruction should be given at the time the evidence is offered as well as that it should be covered in the general instructions at the conclusion of the trial.’ ”
The majority opinion properly reflects that the trial judge did give an admonition to *1037 the jury when the evidence of the armed robbery was offered. But, the trial judge gave no limiting instruction at the close of the case. The third paragraph to this Court’s syllabus to Green v. State, supra, states the following :
“When evidence of other offenses allegedly committed by the accused is offered for the purpose of showing a common scheme, plan or intent, such evidence, to be admissible, must clearly come within the exceptions to general rule that accused must be convicted, if at all, by evidence showing him to be guilty of the offense charged, and when such evidence is admitted, it is the duty of the trial court in his instructions to the jury to so limit the consideration of such evidence.” (Emphasis added.)
This has been the rule for many years. If there is a duty imposed on the trial court, as this Court’s decisions have heretofore held, then the trial court must give the limiting instruction. “Juries are too prone, when such other offenses are admitted in evidence, to find an accused guilty of the crime charged merely because he might have committed some other offense.” Doser v. State, supra, at page 320, 88 Okl.Cr., and page 463, 203 P.2d. The very purpose for requiring the jury instruction is to assure that the jury eliminates from its consideration the evidence of another offense, except as it properly falls within one of the exceptions to the general rule. As I view the rule, the duty to instruct is clearly placed upon the trial court, without any allowance for substantial compliance. The rule clearly requires (1) to admonish the jury when the evidence is offered; and (2) to properly instruct the jury at the close of the case.
Therefore, I feel compelled to dissent to this decision for the foregoing stated reasons, and believe this conviction should receive the same treatment this Court gave in Green v. State, supra, i. e. this conviction should be reversed and remanded for a new trial.