The opinion
PEEEY, J.,
dissenting.
I am unable to agree with that portion of the majority opinion which holds that, in the absence of informing the prisoner of his right to assistance of counsel, this is a denial of a constitutional right that prevents the use of a confession obtained.
In my opinion, Escobebo v. Illinois, 378 US 478 , 84 S Ct 1758 , 12 L ed 2d 977, requires no such conclusion, nor do I believe that such a requirement would in a practical way protect any of the rights of an accused that should affect the admission of the confession if obtained without duress or fraud and voluntarily from the prisoner.
It should be noted that Mr. Justice Goldberg, writing for the majority in Escobedo v. Illinois, supra, commences the opinion with this statement:
“The critical question in this ease is whether, under the circumstances, the refusal by the police to honor petitioner’s request to consult with his lawyer during the course of an interrogation constitutes a denial of ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 US 335, 342 , 9 L ed 2d 799, 804, 83 S Ct 792 , 93 ALR2d 733, and thereby renders inadmissible *505 in a state criminal trial any incriminating statement elicited 'by the police during the interrogation.” (Emphasis supplied)
As I understand this statement, the matter as decided was simply that if a request was made for counsel then to proceed would amount to the denial of a constitutional right and thus, because a constitutional right was denied, the statement elicited by the police cannot be used in the criminal trial, and the question of the voluntariness of the statement is foreclosed by reason of the denial. The majority opinion in Escobedo distinguishes Crooker v. California, 357 US 433 , 78 S Ct 1287 , 2 L ed 2d 1448, where there was a denial of request of counsel, on the basis that in the Crooher case and not in the Escobedo case the prisoner had been explicitly advised by the police of his constitutional right to remain silent and not to say anything in response to questions.
For myself, I am unable to discover as a matter of legal consequence what assistance at this time of accusation an honest lawyer could be to his client other than to keep reminding the prisoner of his right to remain silent.
There are no matters then being litigated wherein the assistance of counsel would prevent fair play if the prisoner has been effectively warned of his constitutional right to remain silent, for from then on all proceedings become evidentiary on the question of voluntariness of the statements.
The logical result of the majority opinion is simply to require that the public furnish counsel to indigents prior to heretofore determined constitutional requirements, and, in my opinion, for no reasonable purpose. *506 Gideon v. Wainwright, 372 US 335 , 83 S Ct 792 , 9 L ed 2d 799, 93 ALR2d 733.
For the above reasons, I dissent from that portion of the opinion which requires that police officers shall, prior to interrogation, inform a prisoner of his right to counsel or a constitutional right has been invaded.