People v. Ford

234 Cal. App. 2d 480, 44 Cal. Rptr. 556, 1965 Cal. App. LEXIS 1036

• Court: California Court of Appeal
• Decided: May 19, 1965
• Docket: Crim. 9879
• Status: Published

Opinions

FLEMING, J.

Kenneth Ford was convicted of unlawfully taking and driving an automobile (Veh. Code, § 10851), but was acquitted of grand theft of an automobile (Pen. Code, §487, subd. 3). Four prior felony convictions (larceny of auto, Oklahoma, 1950; burglary, Oklahoma, 1950; burglary, California, 1953; burglary, California, 1958) were admitted before trial.

The principal issue on appeal is whether questioning of a suspect by the police had ceased to be investigatory and become accusatory so that the accused should have been advised of his right to remain silent and his right to counsel under the rule of People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361].

On the morning of November 27, 1963, Mrs. Mary Pennario, a resident of Los Angeles, awoke to discover missing her blue 1960 Plymouth automobile, license number JLX 026. Her house had been entered during the night, the keys to her automobile taken, and certain personal property had been stolen. Mrs. Pennario had not given anyone permission to take her car.

At 1 a.m. on November 29 a deputy sheriff in Modesto cited the defendant Ford for driving without a license in a blue 1960 Plymouth, license number JLX 026. Ford was asked who the registered owner of the car was, and at first said the car belonged to his sister, but when asked his sister’s name he could not give it and then said the car belonged to a girl friend or a friend of a girl friend. After receiving the citation Ford was allowed to go on his way.

At 11:45 p.m. on the same day, November 29, in Bakersfield, Police Officer John Burum and a fellow-officer observed Ford in the driver’s seat of a blue 1960 Plymouth, license number JLX 026, double-parked with the motor running. On checking the license number, the officers learned the car had been reported as a stolen car by the Los Angeles Police Department. In a brief conversation Ford was asked who owned the vehicle. He replied that it was registered to Mary Pennario, but he did not know her address. Ford was then told the car had been reported as stolen. To this he said nothing. Ford was arrested and taken to the Bakersfield police station by the two officers and there questioned by Officer Burum and another officer. During this questioning Ford said he had borrowed the car in Watts from a friend named Mike, he knew it was hot but he had not taken the car initially, he had driven to Oakland and was returning to Los Angeles. This conversation took place shortly after the arrest and lasted 30 to 40 minutes. On its conclusion Ford was placed in custody in the Bakersfield county jail, and the auto was impounded.

On December 3, 1963, William McMonagle, a police officer from Los Angeles who was the investigating officer in the Pennario case, picked up Ford in Bakersfield to take him to Los Angeles. In Bakersfield Ford told Officer McMonagle he had known the car was stolen but he had not taken it. On the way to Los Angeles during a conversation of some duration Ford again said he had known the ear had been stolen, that he would take the rap for the. stolen ear but not for the burglary. He had gotten the car from a man named Mike in Watts, and had been to Oakland twice, and to Bakersfield about three times, and was on his way back to Los Angeles at the time of his arrest. Ford also said that on his first trip through Bakersfield he had been loaded, i.e., carrying illegal merchandise.

On December 5, 1963, a later conversation between Officer McMonagle and Ford was tape-recorded at the Los Angeles police station, and part of this conversation in which Ford said it was a good thing that he had not been stopped on his first trip because he had been loaded was played to the jury during the cross-examination of the defendant. Defendant's objection to this evidence was overruled.

Bight to Counsel and Bight to Bemain Silent

People v. Dorado, 62 Cal.2d 338, 354 [42 Cal.Rptr. 169, 398 P.2d 361], held that when a police investigation has become an accusatory one, “that is, when it has begun to focus on a particular suspect, the suspect has been taken into police custody, and the police have carried out a process of interrogations that lends itself to eliciting incriminating statements,” then the police must inform the person accused of his right to counsel and his right to remain silent. If the warning has not been given the the accused’s statements are not admissible in evidence.

In this case we are concerned with the admissibility in evidence of two different sets of questionings, a later set with the Los Angeles police and an earlier set with the Bakersfield police.

With respect to the later questionings by the Los Angeles police, Ford should have been advised of his constitutional rights as outlined in People v. Dorado. The questioning of Ford on the way to Los Angeles four days after his arrest and his subsequent questioning in Los Angeles took place at a time when the inquiry had focused on Ford as an accused, and the presence of a tape-recorder on the latter occasion suggests that the primary purpose of these talks was to elicit incriminating statements from him for use in a subsequent prosecution. A warning to the prospective defendant that he was entitled to counsel and need not answer questions should have been given prior to such questionings. Since there was no showing that Ford had been so warned, any incriminating statements secured from him on these occasions should have been excluded from evidence. (People v. Dorado, 62 Cal.2d 338, 353 [42 Cal.Rptr. 169, 398 P.2d 361]; People v. Modesto, 62 Cal.2d 436 [42 Cal.Rptr. 417, 398 P.2d 753] ; People v. Stewart, 62 Cal.2d 571 [43 Cal.Rptr. 201, 400 P.2d 97].)

However, the earlier questioning by the Bakersfield police at the station immediately following the arrest took place during a different stage of the proceedings. Although Ford was under arrest on suspicion of ear theft, there is nothing to suggest the arresting officers were conducting “a process of interrogations” in an accusatorial manner designed to make him confess. At that point it appears the arresting officers were still trying to find out whether a crime had actually been committed and whether Ford should be held to answer for it. In pursuing their investigations they were entitled to ask questions, even of suspects. “Nothing that we have said, of course, should be interpreted to restrict law enforcement officers during the investigatory stage from securing information from one who is later accused of the crime or from obtaining answers to their questions.... Only when the investigatory stage has become an accusatory one, that is, when it has begun to focus on a particular suspect, the suspect has been taken into police custody, and the police have carried out a process of interrogations that lends itself to eliciting incriminating statements, does the doctrine of Escobedo apply and the confession given without the required warning or other clear evidence of waiver become inadmissible evidence.” (People v. Dorado, 62 Cal.2d 338, 354 [42 Cal.Rptr. 169, 398 P.2d 361].)

In applying the Dorado rule here the critical distinction is that between investigation and accusation, between questioning designed to obtain information and questioning designed to secure a confession. (Escobedo v. Illinois, 378 U.S. 478, 485, 492 [84 S.Ct. 1758, 12 L.Ed.2d 977].) The authority of the police and the obligation of the citizen differ sharply in each stage. In the investigatory stage the police are fully entitled to question all persons from whom information may be derived. All citizens are under a statutory duty to assist the police authorities in maintaining the peace and in suppressing crime, a duty which goes back hundreds of years in the common law (Gov. Code, §§ 26600, 26602, 26604; Pen. Code, § 150), and which, by implication at least, includes the furnishing on request of information about crime to the public authorities.¹ The Constitution does not prohibit solicitation of information by the police from a suspect, even one under restraint. Investigatory questioning by the police of a person under restraint is sanctioned by ease law (People v. Mickelson, 59 Cal.2d 448 [30 Cal.Rptr. 18, 380 P.2d 658]; People v. Martin, 46 Cal.2d 106 [293 P.2d 52]; People v. Blodgett, 46 Cal.2d 114 [293 P.2d 57]), and by statute (Cal. Pen. Code, §849, subd. (b)(1); New York Code of Crim. Proc., § 180(a) (adopted 1964)), and is a part of law enforcement procedure which benefits both the police and the person restrained, who when given a ready opportunity to explain suspicious circumstances may quickly clear himself and avoid the stigma of a public charge of crime. (Police Practices and the Law, by Edward L. Barrett, Jr., 50 Cal.L.Rev., pp. 11, 30, 46; 3 Wigmore on Evidence (3d ed.) pp. 319, 360.)

However, when questioning has ceased to be investigatory and has become accusatory then police solicitation of information is now sharply circumscribed. The police are no longer encouraged to solicit information but are discouraged from so doing, and the accused in turn is discouraged from further uncounseled conversation with the police. The policy of the law reverses itself, and the privilege of an accused against self-incrimination and to be advised by counsel supersedes the duty of a citizen to assist the police in suppressing crime. The accused must be warned he need not say anything. The accused must be told that he has the right to counsel. The accused must sufficiently comprehend his situation to make a rational decision whether to avail himself of his right to be silent and his right to counsel. (People v. Stewart, 62 Cal.2d 571, 581 [43 Cal.Rptr. 201, 400 P.2d 97].) The purpose of these restrictions on interrogation is, fundamentally, to eliminate conditions which invite coerced confessions, a purpose made clear in Escobedo and Dorado, and articulated in the opinion of In re Lopez, 62 Cal.2d 368 [42 Cal.Rptr. 188, 398 P.2d 380], in which the California Supreme Court referred to coercion no less than 17 times.

It is apparent that more is involved than the creation of yet another ceremonial formula, which once recited permits things to go on as before. A purely formalistic view of the distinction between the investigatory and the accusatory stage misses the mark and would be a misleading guide to the disposition of future eases. It seems reasonably clear from a reading of Dorado and Escobedo that once the accusatory stage has been reached, any perfunctory advice covering an accused’s right to counsel and right to remain silent will receive a most critical inspection from the courts, and only statements of a prospective defendant who confesses with full advice as to his rights, with full comprehension of what they consist, with full appreciation of the consequences of his conduct, and with an unconditional desire to do so, are likely to successfully navigate the narrow channel into admissible evidence. It is also reasonably clear that our higher courts intend to encourage the use by an accused of his right to counsel and right to remain silent, even though such use of his constitutional rights may reduce the effectiveness of law enforcement. (Escobedo v. Illinois, 378 U.S. 478, 490 [84 S.Ct. 1758, 12 L.Ed.2d 977].)

While the full implications of Escobedo and Dorado have not yet been developed by the courts, it logically follows that if an accused in custody is deemed to have the same status as a defendant under indictment, as the United States Supreme Court has stated he has (Escobedo v. Illinois, 378 U.S. 478, 485, 486 [84 S.Ct. 1758, 12 L.Ed.2d 977]), then if indigent he is entitled to the appointment of counsel in order that there be no invidious discrimination between rich and poor.² (Gideon v. Wainwright, 372 U.S. 335 [83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733] ; Douglas v. California, 372 U.S. 353 [83 S.Ct. 814, 9 L.Ed.2d 811].) If an accused has the status “for all practical purposes’’ of a man under indictment, as the United States Supreme Court has stated he has (Escobedo v. Illinois, p. 486), it also follows that he cannot be questioned in the absence of his to-be-appointed counsel (Massiah v. United States, 377 U.S. 201 [84 S.Ct. 1199, 12 L.Ed.2d 246]). In California once the accusatory stage has been reached, this process comes into play whether the accused has requested counsel or not (People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361]), and can only be waived by an accused who has full appreciation and understanding of the consequences of what he is doing. (Carnley v. Cochran, 369 U.S. 506 [82 S.Ct. 884, 8 L.Ed.2d 70]; People v. Stewart, 62 Cal.2d 571, 581 [43 Cal.Rptr. 201, 400 P.2d 97].) We do not think we overstate when we suggest that under these rules the admission in evidence of confessions obtained by police questioning in the accusatory stage will be the rare exception rather than the rule.

By reason then of the severe limitation, almost amounting to prohibition, placed on police questioning once the accusatory stage has been reached, it becomes important to law enforcement not to classify a suspect prematurely within the accusatory stage in order that legitimate investigation by the police may not be balked, for as put by Mr. Justice Traynor, concurring, in People v. Garner, 57 Cal.2d 135, 164 [18 Cal.Rptr. 40, 367 P.2d 680], “So long as the methods used comply with due process standards, it is in the public interest for the police to encourage confessions and admission during interrogation. ’ ’; and as said by Mr. Justice Frankfurter in Culombe v. Connecticut, 367 U.S. 568, 571 [81 S.Ct. 1860, 6 L.Ed.2d 1037], “Despite modern advances in the technology of crime detection, offenses frequently occur about which things cannot be made to speak. And where there cannot be found innocent human witnesses to such offenses, nothing remains—if police investigation is not to be balked before it has fairly begun—but to seek out possibly guilty witnesses and ask them questions, witnesses, that is, who are suspected of knowing something about the offense precisely because they are suspected of implication in it.

“The questions which these suspected witnesses are asked may serve to clear them. They may serve, directly or indirectly, to lead the police to other suspects than the persons questioned. Or they may become the means by which the persons questioned are themselves made to furnish proofs which will eventually send them to prison or death. In any event, whatever its outcome, such questioning is often indispensable to crime detection. Its compelling necessity has been judicially recognized as its sufficient justification, even in a society which, like ours, stands strongly and constitutionally committed to the principle that persons accused of crime cannot he made to convict themselves out of their own mouths.”

Further light on the distinction between the investigatory stage and the accusatory stage has been given in the recent case of People v. Stewart, 62 Cal.2d 571, 577, 578 [43 Cal.Rptr. 201, 400 P.2d 97]. In Stewart the court held that extensive questioning by the police over a period of five days of one held in custody was designed to elicit incriminating statements and hence was a process of interrogations which required constitutional warnings, the absence of which made a confession inadmissible. In so ruling, however, the court took occasion to delineate what' it meant by the accusatory stage. The accusatory stage is reached when two conditions have been met, (1) the investigation is focused on a particular suspect who has been arrested, and (2) the officers have undertaken a process of interrogations whose purpose is to get a confession. The court was careful to point out that the accusatory stage does not begin with the arrest alone. “We do not agree with the suggestion of some writers that, for purposes of Escobedo, the accusatory or critical stage begins with the arrest alone... Although in most eases the process of interrogations following an arrest will so lend itself, it does not necessarily do so. ’ ’ Beyond the point of arrest the police must have entered upon “a process of interrogations that lends itself to eliciting incriminating statements ’ ’ before the proceedings can be said to have reached the accusatory stage. The test for determining when this stage has been reached does not depend upon the actual intent or subjective purpose of the police in undertaking the interrogations, but rather on the objective evidence from which the purpose of the interrogation may be determined.

The court cited with approval United States v. Konigsberg, 336 F.2d 844, 853, a case in which the dispute over whether a warning had been given was considered immaterial by the court, because at that time the accusatory stage had not been reached. The defendants had been arrested in a garage containing stolen property and on being thereafter questioned at headquarters by federal agents made incriminating statements which were later introduced in evidence. As the ease was summarized by the California Supreme Court: “Among other reasons for not applying Escobedo, the court said that the purpose of the interrogation, even though it took place after the arrest, was not to elicit a confession. The court stated, ‘The uncontradicted purpose of the discussion was to give Konigsberg a chance to explain his presence in the garage if he could; to hear Konigsberg’s side of the story. ... If Konigsberg or any of the - other people caught in the garage could account for their presence this was their opportunity. ’ ’ ’ (P. 579.)

The court in Stewart, 62 Cal.2d 571 [43 Cal.Rptr. 201, 400 P.2d 97], listed five factors to be considered in determining whether or not the police were carrying out a process of interrogations: (1) time of interrogation; (2) place of interrogation; (3) length of interrogation; (4) nature of questions; (5) conduct of the police. The court reviewed the police questioning of Stewart in the light of these factors and ruled that the accusatory stage had been reached at the time of his confession on his fifth day in custody.

Instances of legitimate investigatory questioning of suspects under restraint are found in each of the three leading cases which have articulated the right to counsel in the accusatory stage: Escobedo v. Illinois, 378 U.S. 478, 479, 485 [84 S.Ct. 1758, 12 L.Ed.2d 977]; People v. Dorado, 62 Cal.2d 338, 343, 347 [42 Cal.Rptr. 169, 398 P.2d 361] ; People v. Modesto, 62 Cal.2d 436, 446-447 [42 Cal.Rptr. 417, 398 P.2d 753], In Escobedo the suspect was detained and questioned by the police on the night of the killing and later released. Only the questioning which occurred on his rearrest 10 days later was outlawed by the court as having taken place at a time when the suspect had become the accused. In Dorado, the suspect was initially examined by an investigating officer, but only the questioning which started an hour later in the presence of the district attorney was found to be an accusatorial process of interrogations. In Modesto, the initial questionings by the police without constitutional warnings were held proper because the purpose of these questionings was primarily to further the investigation and perhaps save life, rather than to build a case against an accused.

In the present case Bakersfield police officers saw a car whose license number was on a list of reported stolen cars and saw Ford at the wheel with the motor running. The immediate duty of the police required them to secure possession of the car and the presence of the driver for further investigation. Under the circumstances the driver was, of course, a suspect. But at the time of his arrest it could not be said he had become an accused nor that the police were attempting to get him to confess his guilt. We see no reason why the driver should not have been asked by the police for his full explanation. A number of possibilities might account for the car being on a list of stolen cars and yet not subject the driver to prosecution; as for example, the driver had a quarrel with a member of his family who reported a stolen ear in a fit of pique; the driver had some dispute with the seller of the car over terms and conditions; the driver had been lent the car by a friend on a drunken spree, who mistakenly reported it as stolen on sobering up; the driver had been employed by the real thief to do an errand; the driver had taken a relative’s car without permission, and the relative on learning the identity of the taker declined to prosecute. While the driver of a stolen car is normally a person under suspicion of having violated the criminal law, the suspicion may prove unfounded or be deflected elsewhere in the course of a brief investigation. At this initial stage of the investigation possible innocent explanations of the driver’s predicament made it advantageous to all concerned to get his story freely and quickly. If the driver’s story checked out, he might have been on his way in short order. Only if his story did not convince the authorities would the accusatory stage have been reached, that is to say, the stage at which a person about to be accused of a crime must be cautioned on his rights.

In this case while Ford was not a free agent once he had been detained by the Bakersfield police and taken to the police station neither was he a person held in custody to answer a particular charge. In reviewing the questioning of Ford at the Bakersfield police station in order to determine whether the police were conducting a process of interrogations designed to elicit a confession, we find the five factors set forth in People v. Stewart, answerable somewhat as follows:

Place of interrogation—Bakersfield police station,

Time of interrogation—immediately upon arrival at the station,

Length of interrogation.—30 to 40 minutes,

Nature of questions—essentially seeking the suspect’s explanation, similar to those in the Konigsberg ease,

Conduct of police—no accusations or questioning on inconsistencies appear to have taken place; no statement was written out and presented to defendant for signature; nothing suggests the conversation was other than voluntary.

“[T]he total situation which envelops the questioning” (People v. Stewart, p. 579) indicates that the questioning at the Bakersfield police station was designed to find out what had happened and what Ford’s explanation was so that the police could dispose of this particular item of pending business by either pressing charges against Ford or releasing him. In the spectrum running from (1) witness, to (2) suspect, to (3) accused, to (4) defendant, Ford was still in the suspect classification (2) and had not yet moved into the stages in which he would become an accused (3) or a defendant (4).

The questioning of Ford at the time of his arrest and at the Bakersfield police station, we hold to be factual questioning of a suspect in furtherance of an investigation and properly admissible in evidence. (People v. Dorado, 62 Cal.2d 338, 354 [42 Cal.Rptr. 169, 398 P.2d 361]; People v. Stewart, 62 Cal.2d 571 [43 Cal.Rptr. 201, 400 P.2d 97].)

Nonreversible Error and Sufficiency of the Evidence

The remaining question is whether the impropriety of admitting in evidence Ford’s statements to the Los Angeles police requires a reversal of his conviction.

Ford’s statements to the Los Angeles police were in the form of protestations of innocence of the auto theft (of which he was ultimately acquitted), but we assume that in legal effect they were sufficient to amount to a confession of the crime for which he was convicted, driving an automobile without permission with intent to deprive its owner of possession. Ordinarily, the improper receipt in evidence of a confession automatically requires a reversal of the case because its effect is presumed to be highly prejudicial. However, such a result does not logically follow when a later confession merely duplicates and reiterates an earlier confession which has been lawfully obtained. (People v. Parham, 60 Cal.2d 378, 385 [33 Cal.Rptr. 497, 384 P.2d 1001] ; People v. Garner, 57 Cal.2d 135, 144 [18 Cal.Rptr. 40, 367 P.2d 680] ; People v. Moya, 53 Cal.2d 819, 822 [3 Cal.Rptr. 360, 350 P.2d 112] ; People v. Atchley, 53 Cal.2d 160, 170-171 [346 P.2d 764].) In such a situation there is no danger that an illegal second confession can somehow taint a legal first confession nor do we face the problem of a defendant who, once having been tricked into letting the cat out of the bag, feels it hopeless to try and stuff it back in. (United States v. Bayer, 331 U.S. 532, 540 [67 S.Ct. 1394, 91 L.Ed. 1654].)

Accordingly, we do not consider this a case which requires an automatic reversal but rather one in which we must determine whether the improper admission of evidence resulted in a miscarriage of justice. (Cal. Const., art. VI, § 4%.) Not every violation of due process demands a reversal of a judgment, and not every erroneous invasion of constitutional right requires a new trial. (People v. Modesto, 62 Cal.2d 436, 460-464 [42 Cal.Rptr. 417, 398 P.2d 753], Peters, J., concurring and dissenting; People v. Watson, 46 Cal.2d 818, 834-837 [299 P.2d 243].)

The key fact with respect to the charge of unlawful driving is Ford’s admission that he knew the car was hot. Whether he said this once or five times is of little consequence, because the admission is of such a nature as to be conclusive evidence on the particular charge of which he was convicted. Its repetition on subsequent occasions adds nothing, for there is no shred of evidence that the first admission was the result of inadvertence or misunderstanding or lack of communication or ill health or intoxication. After the first questioning in which Ford admitted he knew the car was hot, further admissions were largely superfluous insofar as the charge of driving without consent was concerned. While it is true that Ford’s later statements might have had some prejudicial effect on his defense against the charge of car theft, when he was acquitted of car theft any such effect became inconsequential. Insofar as relevant to the charge for which he was convicted, we are of the opinion that the erroneous admission in evidence of Ford’s statements to the Los Angeles police was non-reversible error and did not produce a miscarriage of justice which would make a different result probable on retrial. {People v. Watson, 46 Cal.2d 818, 836 [299 P.2d 243].)

Even if we disregard all statements of the defendant after his arrest, there was sufficient other evidence to sustain his conviction of unlawfully driving an automobile. Defendant was found at the wheel of a stolen car two days after it had been taken. Earlier he had been stopped in another city and at first had said the car belonged to his sister, then to a girl friend, then to a friend of a girl friend. At the time of his arrest when told the car was reported stolen he said nothing. Possession of recently stolen property, with slight corroboration through statement or conduct tending to show guilt, warrants a conviction for unlawful taking. (People v. Hopkins, 214 Cal.App.2d 487 [29 Cal.Rptr. 636]; People v. Rhine-hart, 137 Cal.App.2d 497 [290 P.2d 600].) “Where recently stolen property is found in the conscious possession of a defendant who, upon being questioned by the police, gives a false explanation regarding his possession or remains silent under circumstances indicating a consciousness of guilt, an inference of guilt is permissible and it is for the jury to determine whether or not the inference should be drawn in the light of all the evidence.'’ (People v. McFarland, 58 Cal.2d 748, 755 [26 Cal.Rptr. 473, 376 P.2d 449].) We conclude that the evidence to sustain the defendant’s conviction of car-taking was ample.

Other Contentions

Defendant contends the corpus delicti of the crime was not established independently of his admission. The corpus delicti of section 10851 requires only that the vehicle be taken or driven by someone without the owner’s consent with the intent to temporarily or permanently deprive. (People v. Marion, 197 Cal.App.2d 835, 841 [18 Cal.Rptr. 219].) The testimony of Mrs. Pennario satisfied this requirement.

Finally, defendant contends the prosecution did not prove he drove the car in Los Angeles County and therefore the trial court was without jurisdiction. Venue need not be proved beyond a reasonable doubt but only by a preponderance of evidence which may be direct or circumstantial. (People v. Hill, 2 Cal.App.2d 141 [37 P.2d 849]; People v. Bastio, 55 Cal.App.2d 615, 617 [131 P.2d 614].) Here the car was taken in Los Angeles County. Two days later defendant was found in a neighboring county at the wheel of the car with the motor running. This would support an inference that defendant had driven the ear in Los Angeles. The defendant said he had gotten the ear from Mike in Watts. We take judicial notice that Watts is in Los Angeles County. (Code Civ. Proc., § 1875, subd. 9.)

The judgment is affirmed.

Herndon, J., concurred.

1 "1612. Sir Francis Bacon, in the Countess of Shrewsbury’s Trial, 2 How. St. Tr. 769. 778: ‘You must know that all subjects, without distinction of degrees, owe to the king tribute and service, not only of their deed and hand, but of their knowledge and discovery. If there be anything that imports the king’s service, they ought themselves undemanded to impart it; much more, if they be called and examined, whether it be of their own fact or of another’s, they ought to make direct answer.’ ” (8 Wigmore on Evidence (3d ed.) § 2190, p. 60.)

2 "Thus, once the right to counsel attaches, however the test be phrased, a suspect without a lawyer probably would have to be advised of this right and given an opportunity to retain counsel. For the indigent, counsel would have to be appointed, or at least he would have to be advised that he has a right to appointed counsel. Any confession obtained from a person at the ‘accusatory’ stage without complying with these procedures, would be suppressed as obtained in violation of the accused’s right to counsel.” (Enker and Elsen, Counsel for the Suspect: Massiah v. United States and Escobedo v. Illinois (1964) 49 Minn. L.Rev. 47, 78.)