State v. Aiken

434 P.2d 10, 72 Wash. 2d 306, 1967 Wash. LEXIS 810

• Court: Washington Supreme Court
• Decided: October 26, 1967
• Docket: 38592, 38629
• Status: Published

Opinions

Hunter, J.

This is an appeal from the conviction of the defendants (appellants), Antonio N. Wheat and Arthur N. Aiken, on three counts of murder in the first degree, while the defendants were engaged in committing, attempting to commit, or withdrawing from the scene of a robbery. The death penalty was imposed by a special verdict of the jury.

Wheat and Aiken were airmen 3rd class in the United States Air Force, stationed at Paine Field near Everett, Washington, at the time of the commission of the homicides with which they were charged. Both are Negroes and were 20 and 19 years of age, respectively. Wheat is a high school graduate and had worked in Spiegel’s Store in Chicago, Illinois, in a supervisory capacity; he had served 2 years in the Air Force, performing the duties of a cook, and had aspirations of becoming a school teacher. Aiken had been in the Air Force for 2 years and through its educational facilities had completed his high school education; in addition, he held one of the degrees of “brown belt” in service judo competition.

The three homicides with which the defendants were charged were the killing of Owen Fair, service station attendant of a Time Oil Service Station in Seattle, on March 26, 1965; the killing of Daniel Wolf, service station attendant of an Eneo Service Station in Seattle, on April 12, 1965; and the killing of James Harp, service station attendant of a Douglas Service Station north of Seattle in King County, on April 24,1965.

Evidence leading to the apprehension of defendant Wheat came from the identification of Wheat’s car which bad been seen at the Douglas Service Station April 24th at about 4 o’clock in the morning, approximately 15 minutes before the estimated time of Harp’s death. Later that day a car matching the description of the vehicle, observed at the Douglas station, was discovered by police officers in a parking lot opposite the main gate of Paine Field. A check with the Snohomish County sheriff’s office disclosed it to be Wheat’s car.

About 4 o’clock that afternoon Wheat was taken into custody at Paine Field; advised that his automobile had been observed at the scene of a homicide and that he matched the description of a person seen there. He consented to a lineup, where he was identified by witnesses as having been at the Douglas station shortly prior to the homicide. Later that evening Wheat was taken from Paine Field to the King County jail.

Statements taken from Wheat at Paine Field implicated the defendant Aiken, whereupon an all-points bulletin was issued over the police radio, and resulted in Aiken’s apprehension on the evening of April 25, 1965, at Blaine, Washington. He was taken into custody by the'Border Patrol and transported by the Blaine police to the Whatcom County jail at Bellingham. Later the same evening he was met by officers of the Seattle Police Department and the King County sheriff’s office and taken to the King County jail.

To more completely understand the contentions raised on this appeal, as well as the extent of the asserted participation and complicity of the defendants in the alleged homicides, the defendants’ respective versions of the robberies and homicides, as appear in their written statements, introduced in evidence, are set forth in substantial detail. Clerical corrections, as they appear, are also inserted as initialed by each defendant.

The Owen Fair Homicide

In Wheat’s statement (state’s exhibit 4) taken at 11:08 p.m., on April 25, 1965, with regard to the Time Oil Station robbery and homicide of Owen Fair at about 10:30 p.m. on March 26,1965, Wheat states:

I have been advised by Detectives E. T. Mullen, and O. C. Church, of the Seattle Police Department, that I do not have to say anything. That I have a right to see an attorney before saying anything, and that anything I do say, could be used against me in a court of law.

. . . I saw Aiken had the man backed into a small storage area. Aiken was pointing his silver colored, .22 caliber automatic at the man. The man was just standing there, with his hands probably held about half way up. Aikens reached over, and pulled a key off the mans belt, that was attached to a string of some sort. Aiken handed me the key, and told me to go check the cash box. I took it, and went into the office. I opened the cash box, on the counter against the wall, with the key. The box was empty, so I returned to lube room, and told Aiken. At that time, Aikens asked the man, where the money was. The man said he had just come back from taking the money somewhere. At that time, Aikens hit the man in the face, with his left hand. The man said, “please, I have heart trouble,” and put his hands over his face. When he said this, Aikens kind of clubed the man behind his head, with his left hand, and the man fell on the floor. As the man was laying on the floor, Aikens went through his pockets. He took the mans wallet from his back pocket, and some money from the mans shirt pocket. Aikens then asked the man if he had any more. The man didn’t say anything, just laid on the floor. At this time, I went out to the car, to start it, because I had been having trouble getting it started. I was trying to start the car, when I heard about four or five gunshots, from the station. I looked back toward the station, and saw Aikens walk out of the lube, into the office. He stood there for a few seconds, looking around, then he walked on outside, and got into my car. I managed to start the car, and I drove away, .... On the way from the station, to Macs Show Place, Aiken divided the money we had got. My share was about thirty eight dollars. . . .

This is a true and voluntary statement, given freely by me, to Detectives E. T. Mullen, and O. C. Church of the Seattle Police Dept., without threats, promises, or under conditions of duress.

Aiken’s version of the same robbery and homicide in his statement (state’s exhibit 7) taken at 3:30 a.m., April 26, 1965, is as follows:

I have been advised by Detective E. T. Mullen of the Seattle Police Dept., that I do not have to say anything, that I have a right to see an attorney before saying anything, and that anything I do say, could be used against me in a court of law.

. . . There was a middle aged, fat white man in the station office. Wheat and I walked into the office, . . . . Wheat and I remained in the office, until the man came back into there from the lube room. As the man started back into the office, I pulled out my silver colored, .22 caliber automatic, and pointed it at the man. I was carrying the gun in my inside jacket pocket. I think I held the gun in my left hand. I told the man to get back in there, and the three of us went back into a side room off the lube room. I told the man to give me the money, and he didn’t say anything, just started to reach into his right front trousers pocket. As the man did this, Antonio grabbed the mans wrist, and reached into the mans pocket himself. Wheat pulled some money paper currency, out of the mans pocket. Wheat then reached into the mans front shirt pocket, and took out some more paper currency. I told the man to turn around, as he was facing me. The man turned around, and I put my gun in Wheats hand, as he reached for it. At the same time, Wheat handed me a small, white colored can of ether. I had got this can of ether, from the base dispensery, about two or three days before, and had given it to Wheat, and he had placed it in his car.

After Wheat had given me the can of ether, I poured a large amount into a rag I had picked up. I reached around the man, and quickly placed the rag over his mouth and nose. He struggled for a few moments, but I held on to him. The man went limp in my arms, and I laid him on the floor. Wheat handed my gun back to me, and he then grabbed a key, on a white string, that was tied to the mans belt loop. I stood, and covered the man with my gun, as Wheat went into the station office to check the cash drawer. Wheat came back and said there wasn’t anything in there. I suggested we leave. The man was still laying on the floor, and he was mumbling. Wheat said we couldn’t leave yet. I asked him what in hell he was talking about. Wheat replied that we had to shoot him, referring to the man on the floor. I told Wheat I wasn’t going to shoot him, so Wheat told me to give him the gun. I then handed the gun to Wheat, and stepped back by the doorway. Wheat then leaned over the man on the floor, and fired at least four shots into the mans head. I believe another shot hit the man in the chest. The man was laying flat on his back when he was shot, and I estimate that Wheat held the gun about one foot away from the man, when he shot him. After the shooting, I turned, and walked out of the station, going back to the car. A few moments later, Wheat came out, and walked back to the car. Wheat got in and we drove off. . . . Wheat counted the currency we had got from the Time Station man, and it totaled about seventy dollars, Wheat divided it, and gave me my half [initials inserted: A.N.A.], which was a little over thirty dollars. . . . Wheat had also taken a new battery from the station, and placed it on the rear floorboards of his car. . . . This is a true and voluntary statement, given freely by me, to Detective E. T. Mullen of the Seattle Police Dept, without threats, promises, or under conditions of duress. „

The Daniel Wolf Homicide

Wheat’s version of the Eneo station robbery and the Wolf homicide about midnight on April 12, 1965, is contained in his statement (state’s exhibit 3) taken at 10 p.m. on April 25,1965:

I have been advised by Detectives E. T. Mullen, and O. C. Church, of the Seattle Police Dept., that I do not have to say anything. That I have a right to see an attorney before saying anything, and that anything I do say, could be used against me in a court of law.

. . . I had gone a short distance when I noticed my oil indicator light, flashing red, so I pulled into a Eneo Station, on the right side of the road. A young male attendant, came over to the car, and checked the oil for me. He told me I was about two quarts low, so I told him to put in two quarts of bulk oil. Meanwhile, Aikens had gotten out of the car, and went to the mens rest room. The attendant put the oil in the car. When he did this, Aikens came out of rest room, and went into the station office. The attendant told me the price of the oil, which was about sixty or seventy cents, and I gave him a five dollar bill. The attendant went into the station office with the bill, and I got out, and followed him into the office myself. At this time, Aikens pulled out his silver colored, .22 caliber automatic, pointed it at the attendant, and told him, this was a holdup. The attendant told Aiken [initials inserted: A.N.W.] that he would give him the money, or anything he wanted, and that he was a very religious man, and that he didn’t want any trouble. Aikens replied that he didn’t want to hear all that, and he just wanted the money. The attendant then opened the cash box, taking out all the money, offering it to Aikens. Aiken told me to take it, so I did, placing it in my right coat pocket. At that time, Aikens asked if that was all the money, and the attendant said there was more money in the safe. Aikens asked if he could get in the safe, and the kid replied yes, and took a key out of the desk drawer, and opened a floor safe behind the counter. After opening the safe, Aikens told the attendant to step back, and he then took the money out of the safe himself. After getting the money out of the safe, either Aikens or the attendant replaced the top of the safe. Aikens then ordered the kid out from behind the counter and said, “lets go in the back.” The three of us then walked back to a small store room, at the rear of the lube room. When we got back to the store room, the kid asked if he could pray. Aikens didn’t say anything, and the kid got down on his knees, and started praying out loud. I don’t recall what he said. The kid had his head down, and his hand over his eyes. He had said a few words, when Aiken shot him once in the head. Aiken was standing near the kids left side, holding his gun in his right hand. After firing the first shot, the kid fell forward, and Aiken shot him again. After the shooting, Aiken, and I, walked out to where I had left my car, parked at the outside gas pumps. We got in, and I drove back to Paine Field. On the way back, Aiken divided up the money we had gotten. We got about three hundred dollars in all. . . .

This is a true and voluntary statement, given freely by me to Dets. E. T. Mullen, and O. C. Church of the Seattle Police dept., without promises, threats, or under conditions of duress.

Aiken’s version of the same robbery and homicide is contained in state’s exhibit 14, taken on April 26, 1965, at 10:45 a.m.:

I have been advised of my rights to an attorney by Sgt. R. Schoener and Det. D. Shearn of the Seattle Police Dept. I have been told I need not say anything and anything I might say can be used against me in a court of law. I wish to make the following statement.

On a Sunday nite about two weeks ago sometime in the middle of April I was with Antonio Wheat, an airman I am stationed with at Paine Field. We were in Wheats car a 1954 Ford 2 tone brown. It was about midnight and Antonio was driving in the So. end of Seattle on Empire Wy So. We had discussed maybe robbing a gas station and as we drove by an Eneo Station Wheat said that looks like a good one there is only one man there. So he drove a couple blocks up the side street beside the station [initials inserted: A.N.A.] went around the block and parked on the same street just north of the station. We walked across the street and the attendant was alone in the lube room at a bench just in front of a car. He had his back to us. He was working on a car battery. The attendant was about 23 or 24 years old with blondish hair. Wheat asked the attendant what could cause his car to vibrate. Wheat and the attendant discussed the car for a few mintues. I was carrying a .22 cal auto. Italian make [initials inserted: A.N.A.] in my coat pocket. I took the gun out my pocket holding it in my left hand. I told him to turn around but I guess the attendant didn’t hear me so I said it a little louder. The attendant asked if this was a holdup when he saw the gun. I told him what did it look like. He then said he didn’t want any trouble and would give us the money. Wheat walked to the office followed by the attendant and I walked in the rear. I had put the gun back in my pocket. The attendant took the money from a cash box on the end of a counter and laid it down. I picked it up and put it in my pocket. We were getting ready to leave when the attendant said he had more money in the [initials inserted: A.N.A.] safe. Wheat asked him where the safe was and could he open it. The attendant said he could. The attendant pulled open a desk drawer so Wheat went around to see what he was doing. The attendant showed Wheat a key. The attendant picked up the key and bent down just behind him in the corner and opened up the floor safe. Before the attendant could get the door off Wheat pulled him back and took the door off himself. Wheat reached in the safe, started pulling out the money and put it in his pocket. He then asked the attendant if he could get [initials inserted: A.N.A.] into the bottom of the safe but the attendant didn’t have that key. Wheat then put the safe door back on. Wheat then said lets go and pushed the attendant and we all went back to the lube room. Wheat told the attendant to go into a small side room just off the rear [initials inserted: A.N.A.] of the lube room. The attendant said the money was insured. He was very religious and didn’t want to die. Wheat pulled out a small switch blade knife and forced the attendant into the room. Wheat said to me [initials inserted: A.N.A.] do you want to do it or should I. I said I wouldn’t do it. Wheat handed me his knife and I gave him my gun. I knew he was going to shoot the attendant. I closed the knife and put it in my pants pocket. When Wheat pointed the gun at the attendant [initials inserted: A.N.A.], the attendant said he wanted to pray. The attendant got down on his knees and covered his face with his hand. I turn around and walked towards the front of the [initials inserted: A.N.A.] station. I heard one shot then a few seconds later I heard another shot. Wheat then came out of the room. We walked to the car and drove off. I knew Wheat had shot the attendant. Wheat drove south on Empire Way and then pulled up behind a store. He then counted the money. I think it was around $200.00 in cash, and also some checks and other papers. He then gave me about half of the money. I think I got $94.00. Wheat started to drive around town. I told him lets leave and we drove back towards the base. On the way [initials inserted: A.N.A.] he gave me back my gun and I gave him his knife. We got back about 2:00 a.m.

The above is a true and voluntary statement given by me to Sgt. R. Schoener & Det. Sheam of the Seattle Police Dept without threat duress or promise of any kind.

(The first page of exhibit 14 contains a sketch by Aiken of the layout of the Eneo Service Station with the lube room designated where Daniel Wolf was shot.)

The James Harp Homicide

Wheat gave three versions of the robbery and Harp homicide April 24, 1965, at the Douglas Service Station. The first version was contained in his statement (state’s exhibit 1) taken at 11 p.m. on April 24, 1965, in which he asserted that Aiken fired the fatal shot. A similar version was contained in his statement (state’s exhibit 2) taken at 3:55 p.m. on April 25, 1965. The final and corrected version of the Douglas Service Station robbery and the Harp homicide was contained in his statement (state’s exhibit 6) of 1:35 a.m. April 26,1965, as follows:

The officer taking this statement has advised me that I do not have to make any statement and if I do that it may be used [initials inserted: A.N.W.] as evidence against me in court.

He has also advised me of my right to an attorney before I give any statement. I wish to make a correction to a statement I gave Detective Mullen and Sgt. Crider dated April 25, 1965 at 3:55 p.m. Approximately ten minutes prior to the start of this statement I talked to my friend Arthur Aiken and now have decided to tell the complete truth. On April 25, 1965 I was in Judge Hoar’s court and although I was charged with murder in the first degree I more than ever want to tell the truth. While I was in court the judge informed me of my rights and also told me I was entitled to an attorney.

When I drove into the Douglas Service Station on April 24, 1965 at approximately 3 a.m. Arthur Aiken was awake. I got out of the car and got the key on a can about the size of a beer can to the rest room. I then used the key to unlock the door to the men’s rest room and went in to urinate. I then gave the key back to the service station attendant. I then walked to the car and got in on the driver’s side. We then sat and talked for awhile. I fell asleep and then woke up at approximately 4:15 a.m. Arthur Aiken was asleep. I then walked into the station office to use the phone. I called Paine Field Air Base and there was no answer. I talked to the service station attendant until his two friends drove up and left. After they left I asked the attendant for change for a twenty dollar bill. We then walked out to the cash box by the pumps.

After he opened the cash [initials inserted: A.N.W.] box I pulled the 22 silver automatic out of my right pocket and told him “give me all the money, this is a holdup.” He then told me to take all the money as it was insured and he wasn’t. He took all the currency out of the cash box and handed it to me. I took the currency with my left hand and put it in my left coat pocket. We went back in the office and I told him “to get the key to the men’s rest room.” He picked up the key from the counter and I told him to walk into the men’s rest room which he did, and I followed him. After we got into the rest room he sat down on the toilet and before he sat down he said “don’t kill me.” I asked him if he could describe me and he said he didn’t know. I also asked him if he could describe the car if he had to and his reply was “don’t kill me.” I asked him again if he could describe the car and he said “he probably could.” He started talking and I don’t remember what he said and I told him to shut up and he kept on talking. I then released the safety on the gun and the first shot went off accidentally. He slumped over and I then fired two more shots after I aimed at his head. After the first shot was fired he dropped the key on the floor. I then went outside and ran to the car. I then got in the car and started the motor. Arthur Aiken was still asleep. As I stated in the previous statement I drove back to the base and on the way I counted the money which amounted to $120. The 22 automatic I used I had taken from Arthur Aiken’s pocket on the early morning of April 21 or April 22, 1965. When I sneaked into his unlocked room at the barracks. I was dressed in a brown suit, white shirt, black shoes and black sox and had on a three quarter length tan topcoat. I may have taken the wrist watch from the attendant and I therefore give permission to search my locker on the base at Paine Field. This is a true and voluntary statement given freely to Detective Church and Mullen [initials inserted: A.N.W.] and Sgt. Crider without fear threats or promise of any kind. This statement started 4-26-65 at 1:35 a.m. and ended 4-26-65 at 2:45 a.m.

Aiken’s version of the same robbery and homicide (state’s exhibit 5) given at 1:20 a.m., April 26, 1965, is as follows:

On 4-23-65 I left Paine Air Base, with Antonio Wheat, in his car a 1954 Ford 4 dr. Sedan two tone brown. This car also has a black hood. I believe we left the base about 3:30 p.m. Antonio told me that he had to go to his girls house, because he had to drive her to the Laundromat. We got to his girls house about 6:30 p.m. Her name is Dorothy and she lives out on holly park drive in the south end of Seattle, Wn. Antonio and I went into the house, and stayed about one hour. When we left we drove one of Dorothys sisters and another female friend to their home, then Antonio and I drove back to Everett, Wn. and drove to a friends home Eric Brown. When we got to Browns home he was going to take a bath so Antonio and I walked over to another Airmans home Edwin Jones home. I wanted to go there because I had lent him two records that belonged tó me. I picked up one of the records and not the other as Jones wife had lent it to one of her friends. Antonio and I then walked back to Eric Browns house and he was ready to go with us so all three of us got into Antonios car and drove to Seattle. We left Brown house about 10:30 p.m. 4-23-65. We all drove down to a dance place near 2nd & Yesler in Seattle, the name of the place was Macks Show Place. Eric got out of the car to see if there were any people there, and jumped back in and said it didn’t look like there was much action. So we drove up to 12th & Jackson to another spot the Black & Tan. We all got out of the car and walked in the entrance to this place and looked inside but we did not want to pay the cover charge as there wernt to many people there. We all got back into the car, and drove to another place we had heard about. I believe they call it the Go-Go this is the name. We were stopped by the officer at the door and because we did not have Washington State I.D. liquor cards, he would not let us in. We all got back into the car and started to head for Everett to take Eric back home. By this time it should have been a little after 12 midnite. I do not recall what time we dropped Eric at his home because I had gone to sleep in the back seat. I dont recall the time but when Eric got out of the car I woke up and got in the front seat next to Antonio. After we dropped Eric off Antonio drove to a gas station on highway 99 north of Everett, Wn. and Antonio got out of the car and went to the rest room. I remember that when Antonio got back into the car after using the rest room and we drove toward Seattle, Wn. The next time I woke up I saw that we were in a Douglas Gas Station some place in the northend of Seattle. I woke up and asked Antonio why we were parked there and he said that he pulled in there because he was sleepy and wanted to rest a little while. I remember that Antonio got out of the car I don’t know where he went. I went back to sleep and I did not wake up again until we were in the parking lot across the street from the main gate at the Air base. I dont recall what time this was but it was light. Antonio and I both got out of the car and went into the base. We both live in the same barracks and I live upstairs and Antonio lives down stairs. I went to my room and he went to his. I have read this statement of four pages given by me freely and voluntarily without fear threats or promise. I have been advised of my right to legal counsel before giving this statement and have also been advised this statement could be used against me in a court of law. I wish to give this statement after having been advised of this.

Although numerous assignments of error have been made on this appeal by each of the defendants, the crucial contention for review is the asserted denial of the defendants’ constitutional rights as guaranteed by the fifth, sixth and fourteenth amendments of the federal constitution by reason of the admission into evidence of these statements made by the defendants.

The evidence relative to the interrogation of Wheat and Aiken is disclosed in the record of a 3-day pretrial hearing that was held pursuant to Rule of Pleading, Practice and Procedure 101.20W, RCW vol. 0, to determine the admissibility of Wheat’s and Aiken’s incriminating statements, and the admissibility of other evidence. Further evidence appears in the record of a supplemental hearing, ordered by this court, with respect to the confessions of the defendant Aiken and is discussed later in the opinion.

In order to properly evaluate the evidence adduced at the evidentiary hearings in light of the ultimate findings of the trial court, we first turn to a discussion of the applicable legal principles governing the admissibility of these challenged statements.

Since defendants Wheat and Aiken were tried in October, 1965, we are not directed to follow the recent exclusionary rule announced prospectively by the Supreme Court of the United States in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 Sup. Ct. 1602 (1966), wherein the following guidelines were incorporated, clarifying and extending its earlier decision in Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977, 84 Sup. Ct. 1758 (1964), (Mr. Chief Justice Warren for the court):

[W]e hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that [1] he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him. (Italics ours.) 384 U.S. at 478, 479.

Chief Justice Warren, in Johnson v. New Jersey, 384 U.S. 719, 16 L. Ed. 2d 882, 86 Sup. Ct. 1772 (1966), explained the reasons for not making Miranda retroactive, stating:

As for the standards laid down one week ago in Miranda, if we were persuaded that they had been fully anticipated by the holding in Escobedo, we would measure their prospectivity from the same date. Defendants still to be tried at that time would be entitled to strict observance of constitutional doctrines already clearly foreshadowed. The disagreements among other courts concerning the implications of Escobedo, however, have impelled us to lay down additional guidelines for situations not presented by that case. This we have done in Miranda, and these guidelines are therefore available only to persons whose trials had not begun as of June 13, 1966. (Italics ours.)

We therefore deal here only with Escobedo; wherein Justice Goldberg, speaking for the court, announced the following constitutional safeguard:

[W]here, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, [1] the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his [2] absolute constitutional right to remain silent, the accused has been denied “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. Wainright, 372 U.S., at 342 [9 L. Ed. 2d 799, 83 Sup. Ct. 792], and [3] that no statement elicited by the police during the interrogation may be used against him at a criminal trial. (Italics ours.) 378 U.S., at 490-91.

Our interpretation of Escobedo and that which has been followed by law enforcement officers since 1965, prior to Miranda, came in State v. Darst, 65 Wn.2d 808, 399 P.2d 618 (1965), where, considering the implications of the opinion, we foresaw the Supreme Court’s holding in Miranda by making the following observations as to the warning that should be given by police officers before interrogating a person in lawful custody:

It seems to us that a forthright, clearly provable warning given to one in lawful custody informing the accused in unmistakable terms that [1] he has a right to counsel and [2] a right to remain silent, and [3] that anything said or written by him may be used against him in evidence, would do much to eliminate a sizable quantum of claimed error and keep the investigation channeled to its true purpose: ascertaining the guilt or innocence of the party accused. We see no reason for so simple a caveat not being given routinely and required as a part of modern police administration. (Italics ours.)

It is certain now that this is what the court intended in Escobedo, for in re-enunciating its tenets in Miranda, Chief Justice Warren explained:

Our holding there [Escobedo] stressed the fact that the police had not advised the defendant of his constitutional privilege to remain silent at the outset of the interrogation, and we drew attention to that fact at several points in the decision, 378 U.S., at 483, 485, 491. This was no isolated factor, but an essential ingredient in our decision. The entire thrust of police interrogation there, as in all the cases today, was to put the defendant in such an emotional state as to impair his capacity for rational judgment. The abdication of the constitutional privilege —the choice on his part to speak to the police—was not made knowingly or competently because of the failure to apprise him of his rights; the compelling atmosphere of the in-custody interrogation, and not an independent decision on his part, caused the defendant to speak. (Italics ours.) 384 U.S. 436, 465.

In this context, in Escobedo, the United States Supreme Court, with significant attention focused on the admitted denial of the defendant’s continued requests for counsel, struck down Escobedo’s admission of complicity in a murder plot and his later confession, reasoning that Escobedo was unwarned of his rights and thus unaware a statement admitting complicity in the murder could be used against him, under Illinois law, just as effectively as if he had admitted firing the fatal shots.

The United States Supreme Court, in Escobedo, recognized however that an accused may intelligently and knowingly waive his privilege against self-incrimination and his right to counsel either at a pretrial stage or at trial (footnote 14 of the opinion; Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461, 58 Sup. Ct. 1019, 146 A.L.R. 357 (1938) ); but that no knowing and intelligent waiver of any constitutional right could be said to have occurred under the circumstances of Escobedo’s interrogation, the defendant being unaware of his rights.

The most recent post Escobedo expression of “waiver” is the so-called “Dorado Rule” (See People v. Dorado, 62 Cal. 2d 338, 398 P. 2d 361 (1965), cert. denied, 381 U.S. 946 (1965), cited by the Supreme Court of the United States in Miranda, supra, at 471, 478), which essentially holds that a defendant cannot be charged with waiver of a constitutional right unless it appears that he was aware of its existence and its surrounding safeguards and voluntarily and intelligently elected to refrain from asserting it. As stated by the California court:

“. . . a waiver is an intentional relinquishment or abandonment of a known right or privilege. A waiver cannot be effected unless it is intelligently and competently given.” [Griffith v. Rhay, 282 F.2d 711, 717 (9th Cir. 1960).]

In the absence of evidence that defendant already knew that he had a right to counsel during interrogation, the failure of the officers to inform him of that right precludes a finding that he knowingly waived it.

Escobedo also holds that the accused has the right not to incriminate himself and to remain silent, and that, if any self-incriminatory statements are to be admissible, he must waive that right. Such waiver presupposes knowledge of the right to remain silent; in the absence of evidence of such knowledge, the waiver requires a warning to the accused of that right.

Obviously, defendant could not waive the right to remain silent unless he knew of that right. . . . “The defendant . . . cannot be charged with a waiver of the privilege unless it appears that he was aware of its existence and its surrounding safeguards and voluntarily and intelligently elected to refrain from asserting it.” (Italics ours.) (Footnote omitted.)

Summarizing the Escobedo decision and other cases cited herein, to be admissible in evidence, the record must show that the incriminatory statements given by a defendant in custody at the accusatory stage, were freely and voluntarily made by him after he has been apprised of his right to remain silent, his right to counsel before making any statement, and the warning given that anything he does say may be used against him in a court of law. It must also appear that the accused knowingly and intelligently elected to refrain from asserting these rights at that time in answering the questions of police.

With these principles in mind, we now turn to the inquiry whether the defendants here were properly apprised of their constitutional rights and with such knowledge voluntarily waived them during the interrogations that elicited their confessions.

Interrogation Of Wheat

Wheat maintains that, under Escobedo, he was never properly and adequately warned of his constitutional rights and the trial court committed error by receiving his incriminations in evidence against him. The trial court found, however, that before the oral statements made by Wheat and the statements contained in exhibits 1, 2, 3, 4, 6, and 9 were given, he was fully advised (1) of his right to counsel before making any statement, (2) his right to remain silent, and (3) that anything which he did say could be used against him in a court of law. The court further found all warnings given Wheat were in the form of the standing order of the King County sheriff’s office (exhibit 13), which is a directive to officers conducting in-custody interrogations. The directive states in pertinent part:

It is imperative that each officer interrogating a criminal suspect give most careful consideration to the suspect’s Constitutional Rights as interpreted by recent court decisions. Incriminating statements, either verbal or written, elicited by police during an investigation, may be invalidated if the suspect is not effectively warned of his rights to remain silent and if his right to counsel or legal advice is denied.

Prior to taking a statement, oral or written, from any person under arrest actually suspected of a criminal offense, the interrogating officer shall effectively advise the suspect as follows:

(1) that he has the right to remain silent,

(2) that it is his right to consult with and be advised by an attorney before making any statement,

(3) that anything he says may be used against him in a criminal proceeding.

In reaching this conclusion on disputed facts, the court based its decision on the following exhibits and testimony summarized as follows:

1. Warning of Lieutenant Paul T. Hancock, officer of the day at Paine Field, informing the defendant Wheat of his rights under Article 31 from the Manual of Courts Martial,

“Uniform Code of Military Justice; and corroborated by Airman Bennett, who was present at the time.

2. Warning by Everett Mullen of the Seattle Police Department after apprising Wheat his car was observed at the scene of a homicide, and who testified that he told the defendant he did not have to say anything, that he could see an attorney before he did say anything, and anything he did say could be used against him in a court of law; corroborated by the testimony of Lieutenant Hancock, and Sergeant Hartshorn of the King County sheriff’s office.

3. Warning by the same officers after Wheat was identified in a lineup by two witnesses as the man they had seen at the service station where James Harp had been murdered.

4. Warning by Sergeant Ron Crider of the King County sheriff’s office prior to taking statement exhibit 9; and corroborated by Detective Frank Chase of the Seattle Police Department.

5. Warning given prior to the taking of statement exhibit 1 before Detective Mullen of the Seattle Police Department and Detective Sergeant Crider of the King County sheriff’s department.

6. Warning by Detectives Mullen and Crider, given in King County Sheriff Porter’s office prior to giving statement exhibit 2.

7. Warning by Judge Hoar at the defendant’s justice court 'arraignment on murder in the first degree.

8. Warning by Detectives Mullen and O. C. Church, of the Seattle Police Department, prior to statement exhibit 3.

9. Warning before taking statement exhibit 4, by Detectives Crider and Church.

10. Warning by Detectives Church, Mullen, and Crider, before taking statement exhibit 6 in which Wheat confessed to the killing of James Harp.

In addition to these oral warnings, the court found, and we have set out, the written warnings that appear in each statement, testified to as being read and signed or initialed by the defendant Wheat on each page, and corrected by him at various places already noted in the statements.

From our reading of the record, therefore, the trial judge was entitled to believe that Wheat had the above rights called to his attention no less than 16 times; and under these circumstances, was found to have given the noted statements, only after such warnings of his rights had been given.

The undisputed finding of the court was that at no time did Wheat exercise his rights in any manner by requesting an attorney or by refraining from giving the challenged statements.

The trial judge further found that by reason of the defendant’s intelligence, which was described as superior and equivalent to a person with an advanced college education, that defendant Wheat fully understood his rights and that the statements, supra, were freely and voluntarily given.

Our independent review of this evidence (see Haynes v. Washington, 373 U.S. 503, 10 L. Ed. 2d 513, 83 Sup. Ct. 1336 (1963); In re McNear v. Rhay, 65 Wn.2d 530, 398 P.2d 732 (1965) ) reveals that in the first of his six statements (exhibit 9), Wheat gave an innocuous account of his activities on the previous night, April 23, 1965. In the next statement (exhibit 1), when faced with inconsistencies in his story, Wheat admitted knowledge of the homicides but denied implication, naming Aiken as the one who had held up the Douglas station and killed Harp. The next day when confronted with the murder weapon, retrieved from his duffel bag in an air base storeroom, Wheat admitted he had participated in the Douglas station robbery two nights before, but stayed with his story that Aiken had fired the fatal shots (exhibit 2).

These three statements were found to have been given freely and voluntarily, without threat or fear and only after the defendant had been advised of his constitutional rights and had elected not to exercise them in any manner (finding of undisputed fact 16, pretrial hearing).

Finally, after being advised of his rights, under Escobedo, at the justice court arraignment before Judge Hoar, and after the police repeatedly warned him again, Wheat freely gave three more statements. In the first (exhibit 3), he admitted participation in the Wolf homicide but named Aiken as the triggerman. In the next statement (exhibit 4), he admitted participation in the Owen Fair homicide, and again placed the responsibility for the killing on Aiken. In his last statement (exhibit 6), Wheat, subsequent to a confrontation with Aiken who had called him a liar, admitted that he and not Aiken had fired the fatal shots killing James Harp. As in the first three statements, the trial court found that these incriminating admissions and the confession were given freely and voluntarily only after the defendant had been advised of his constitutional rights and had not elected to exercise them in any manner.

Considering all these circumstances, the evidence is overwhelming that Wheat knowingly and intelligently waived his constitutional rights at this point in the proceedings against him. He unequivocably and with full appreciation of the consequences made these incriminations, after laboring with his conscience for “putting the finger” on Aiken as the one who had fired the shots. (Court’s ruling at pretrial hearing.)

We hold that the trial court correctly determined that all the statements of Wheat were freely and voluntarily given with knowledge and understanding of his constitutional rights, under Escobedo, and were admissible against him. See Hiram v. United States, 354 F.2d 4 (1965), cited with approval in Miranda; United States v. Currie, 354 F.2d 163 (1965); Cephus v. United States, 352 F.2d 663 (1965), cert. denied, 384 U.S. 1012 (1966); United States v. Drummond, 354 F.2d 132 at 150, cert. denied, 384 U.S. 1013 (1966); People v. Dorado, supra.

The argument is made that there could be no knowing and intelligent waiver by Wheat since, as a layman, Wheat could not know that, in four of his six statements, the admission of complicity in the three crimes was equivalent in law to having fired the fatal shots himself, and that absent this knowledge, there could be no valid waiver. The parallel is drawn to similar admissions made by Danny Escobedo in that case noted above. We find this argument to be without merit on the facts of this case.

The warnings given to Wheat (none were given to Escobedo) are clear and express. To argue that after such warnings the accused must also be advised that an admission of complicity in the crime is in law an admission of the crime, denies the very purpose for which the warnings were given. Wheat was advised that “any statement made by him could be used against him in a court of law.” (Italics ours.) This warning has as its purpose, the awareness by the individual so warned, of this very situation complained of.

Therefore Wheat, in choosing to answer questions put to him by the police without benefit of counsel, cannot now complain that he incriminated himself out of ignorance. United States v. Currie, supra, at 165, 166; People v. Dorado, supra.

Wheat further contends that the incriminatory statements, given by him to police officers after his justice court arraignment, should have been excluded from evidence; since he was at that time without the effective assistance of counsel. This argument is based on the authority of People v. Waterman, 9 N.Y.2d 561, 175 N.E.2d 445 (1961), long followed in New York; recognized by us in State v. Moore, 61 Wn.2d 165, 377 P.2d 456 (1963); and adopted as a federal constitutional standard in Massiah v. United States, 377 U.S. 201, 12 L. Ed. 2d 246, 84 Sup. Ct. 1199 (1964). See also McLeod v. Ohio, 381 U.S. 356, 14 L. Ed. 2d 682, 85 Sup. Ct. 1556 (1965). The rule, succinctly stated, is as follows:

Any secret interrogation of the defendant, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime.

By the same token, they [officers] may not circumvent the defendant’s privilege against self incrixnination by introducing into evidence inculpatory statements obtained from him (following indictment) at a private examination prior to the trial, at least where, as here, he was not first advised of his privilege and his right to the assistance of counsel. (Italics ours.) 9 N.Y.2d at 565, 566.

We agree with the manifest purpose of this constitutional standard; since by the finding of the indictment or the filing of a complaint or information, under our practice, the formal criminal action is commenced against the defendant and presumably imports that the state has legally sufficient evidence of the defendant’s guilt of the crime charged. The necessities of appropriate police investigation to “solve a crime, or even to absolve a suspect cannot be urged as justification for any subsequent questioning of the defendant.” Spano v. New York, 360 U.S. 315, 323, 3 L. Ed. 2d 1265, 79 Sup. Ct. 1202, 1207 (1959); People v. Waterman, supra, at 565.

The applicability of this constitutional standard to the instant case properly relates only to the defendant’s corrected version (state’s exhibit 6) of the Harp homicide, for which he had been formally charged at his arraignment in justice court. No formal proceedings had been commenced against Wheat for the Wolf and Fair murders and the police officers properly interrogated him with respect to these offenses. And since the defendant’s confession, that he and not Aiken had fired the fatal shots into the kneeling figure of James Harp, was arrived at only after he had been properly warned of his privilege against self-incrimination and his right to the assistance of counsel, People v. Waterman, supra, we are satisfied that this interrogation, which followed the confrontation, did not violate the defendant’s fundamental right to the assistance of counsel, as enunciated in Massiah, supra.

Interrogation of Aiken

Our review of the facts and circumstances surrounding the interrogation of the defendant Aiken is invaluably aided by the fact that his interrogation was tape recorded, virtually in its entirety, without the knowledge of either the defendant or the interrogating officers. It proved necessary, however, due to the poor quality of the tape recording at various points in the interrogation to remand this case for a further hearing on the issue of voluntariness, so that our ultimate decision in the case would be based on a record which was complete in every respect. The evidence relative to Aiken’s interrogation, therefore, is disclosed in the records of both evidentiary hearings held to determine whether the defendant’s constitutional rights had been violated in any respect by the taking of his confessions and their admission in evidence at his trial. The following facts as found by the trial court are undisputed, except as hereinafter noted.

After Aiken’s apprehension in Blaine, Washington, by the border patrol at 4:19 p.m. on April 25, 1965, he was placed under arrest by a Blaine city policeman for carrying a concealed weapon (a fully loaded .25 automatic) and transported to the Whatcom County jail at Bellingham. The officers of the border patrol, state patrol, city of Blaine, and Whatcom County sheriff’s office, all testified that from the time of his apprehension, Aiken’s attitude was sullen and quiet and he held his head down. In fact, during his entire detention in Bellingham, pending his transport to Seattle, Aiken only asked one question concerning his detention, remaining silent even to the extent of refusing to answer routine identification questions by the booking officer.

At approximately 10 p.m. that evening, Detective John Leitch of the Seattle Police Department and Detective Sergeant Frank Chase of the King County sheriff’s office arrived in Bellingham to drive Aiken to Seattle. At that time, the police officers advised him that he did not have to make any statement to them, that he had a right to an attorney before making any statement, and that anything he did say could be used against him in a court of law. Detective Leitch asked Aiken if he understood his rights, and the defendant nodded and said “yes.” The defendant was very quiet. He had his head down and his attitude was surly and cool.

En route to Seattle, Detective Leitch inquired of the defendant whether he, as a member of the military, was familiar with article 31 of the Uniform Code of Military Justice, which prohibits compulsory self-incrimination. The defendant replied that he was familiar with it. The article in pertinent part reads as follows:

Art. 31. Compulsory self-incrimination prohibited

(b) No person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.

Detective Leitch further advised Aiken that he was being held on a charge of homicide and robbery. The defendant denied any involvement and the officers did not discuss the matter further.

Upon their arrival in Seattle, at approximately midnight, the police officers took Aiken to an interrogation room located on the 10th floor of the County-City Building. At 12:20 a.m., April 26, 1965, an interrogation began there, which is recorded on exhibit 11, the first tape recording, and prior thereto the defendant was again cautioned by Detective Chase of his constitutional rights as enumerated. This third warning was corroborated by Detective Everett Mullen of the Seattle Police Department, who participated in the interrogation, and is admitted by Aiken as having been given to him.

During the conversation that followed between Sergeant Chase, Detective Mullen and the defendant Aiken, the defendant had his head lowered, mumbled his words and was difficult to understand. The interview room is not soundproof, and during the conversation the detectives heard, and the recording discloses, several noises from outside the room, including a laundry running on the floor above, a swinging gate just outside the interview room, and traffic noises outside the window.

During the interrogation, Aiken read a statement by the defendant Wheat (exhibit No. 3) pertaining to the Wolf homicide as charged in count 2 of the information, wherein Wheat accused Aiken of the callous slaying of the victim, while he was on his knees praying. Aiken insisted that the statement was a counterfeit, and that Wheat was lying.

Shortly thereafter, at 1 a.m., Chief of Detectives Thomas Nault entered the interview room. Chief Nault advised the defendant that further evidence had been received from Airman Brown, a friend of Aiken, which indicated that the murder weapon was Aiken’s. Nault corroborated the fact that Wheat had given the statement read by Aiken, and that they wanted to give Aiken the opportunity to give his side of the story before he was charged with murder; that if Wheat was lying, they wanted to know it.

Aiken then requested that Wheat be brought down to the room to verify the statement. The request was granted, and Wheat was brought to the interview room. While standing in front of Wheat, Aiken asked him if he had given the Wolf statement, and Wheat acknowledged that he had. In response to Wheat’s refusal to say the statement wasn’t true, Aiken exclaimed the statement was a lie and he would tell the officers what really happened.

Aiken immediately answered questions concerning the Wolf homicide. At 1:15 a.m. he was asked if he wished to give a statement of his version and he replied that he would.

Upon this confrontation with Wheat, the defendant Aiken ceased to mumble his words, spoke positively, and held his head up. He appeared to be upset and excited.

At 1:20 a.m. Sergeant Chase and Detective Leitch began a conversation with Aiken in the interview room concerning the Harp homicide as charged in count 3 of the information. This conversation was recorded on exhibit 12 until 2:22 a.m. Both detectives and Aiken were aware that this conversation was being taped.

At the outset of said interrogation, Sergeant Chase admonished the defendant Aiken of his right not to make any statement, that he had a right to an attorney before making any statement, and that any statement given by him could be used as evidence in a court of law. Aiken stated that he understood this, and when asked whether he still wished to give a statement, he replied, “yes.”

The Fair and Wolf homicides, as charged in counts 1 and 2, were being investigated by the Seattle Police Department, and the Harp 'homicide was being investigated by the King County sheriffs office. It was the intention of the investigating officers to obtain separate statements for each homicide. During the conversation, as recorded on exhibit 12, Sergeant Chase began writing exhibit 5, relative to the Harp homicide. Sergeant Chase, however, did not complete exhibit 5 during the recording, since Aiken talked not only about the Harp homicide, but also the Fair and Wolf homicides. After the recorded conversation was ended, exhibit 5 was completed.

At approximately 3 a.m. on April 26, 1965, Detectives Mullen and Orin Church interrogated Aiken in the interview room concerning the Fair homicide as charged in count 1 of the information. At the outset of the interrogation, Aiken was advised by Detective Mullen that he did not have to say anything, that he had a right to see an attorney before making any statement, and that anything he did say could be used against him in a court of law. The defendant Aiken stated that he understood these rights. Mullen then asked the defendant if he desired to use the telephone. This offer was not accepted.

During this interrogation by Detectives Mullen and Church, Aiken talked about his participation in the Fair homicide. At this time, exhibit 7 was written by Detective Mullen and signed by Aiken. All conversations with Aiken ceased shortly before 5 a.m., and he was placed in a cell at the King County jail.

Aiken was not questioned further until 10 a.m. on April 26, 1965, when Detectives Richard Schoener and Dana Shearn interrogated Aiken in the county jail. Detectives Schoener and Shearn had never met Aiken before, and were not present in the King County courthouse during the prior questioning of Aiken. Prior to the interrogation, Detective Schoener advised Aiken that he did not have to say anything, that he had a right to an attorney before making any statement, and that anything he said could be used against him in a court of law. Aiken stated that he understood this admonition. Detective Schoener proceeded to write exhibit 14, which was signed by Aiken. During this interrogation, Aiken drew the sketch of the Wolf homicide scene and signed it. The interrogation concluded at approximately 11:20 a.m.

Aiken maintained in the original pretrial hearing that he, repeatedly, requested counsel at various times; but that all of the officers, including the jailor at the county jail in Bellingham, Detective Leitch, and the two interrogating officers, completely ignored any and all requests made by him.

The trial court at the first hearing was aware that such a request could have been made, considering that at numerous places on the tapes, Aiken’s answers could not be heard; and that throughout the interrogation, at least prior to the confrontation, he spoke with his head down and indistinctly.

The trial court expressly noted in finding of disputed fact 1, however, that Officer John Leitch and the officers, who questioned Aiken in Seattle during the period in which he stated he requested counsel, each testified that, although it was possible, they did not, at any time, hear Aiken request an attorney, or to contact any person, other than Wheat. The arresting officer at Blaine and the Whatcom County jailor also testified that Aiken, in their presence, was extremely quiet and sullen and made no request for counsel at any time.

Believing this testimony, which was fully supported by the record, and not discovering anything on the tapes to the contrary, the trial court entered conclusions as to this disputed fact by holding that Aiken did not, at any time, at least in words audible to any of the officers talking to him, request an attorney. (Conclusion of disputed fact 1—pre-trial conference.)

Upon this court’s discovery of what appeared on the tape (exhibit 11) to be a request for counsel and pursuant to our order of May 5, 1967, and the procedure outlined therein, the trial court redetermined the issue. It concluded that Aiken had made a request for counsel on at least two occasions, after reading Wheat’s statement of the Wolf homicide and before the confrontation. The transcription by the trial court reads as follows:

Q. You tell us the truth, then, if this is a lie. (A. I’d like to see an attorney, I won’t mess around with you.) XQ. This matches all the physical evidence. The guy’s not lying. A. He is lying. Q. We’ve got the physical evidence at the scene. A. He is lying. Q. What’s he lying about? What’s he lying about? Tell us what he’s lying about. (A. I want to see an attorney.2) Q. Well what’s he lying about? A. He is lying. Q. Where?

Show us where he is lying in (t)here. A.....3 Q. Just one place, one place in it he’s lying. Just one place. Just one place that he’s lying. A.....4

i ana 2^]^ court reporter’s transcript indicates that the response at this point is unintelligible. However, as above indicated monitoring of the tape would appear to indicate the above bracketed statements.

3The tape reveals that Aiken’s answer at about this point is difficult to apprehend. However, again, careful monitoring suggests the possibility of a request for counsel at this point.

4The tape at this point likewise reveals Aiken’s answer to be somewhat indistinct. However, again, careful monitoring indicates either a fourth request for counsel or the possible statement: “I don’t care to say anything else to that.”

As in the first hearing, the trial court found that Aiken’s requests to see an attorney, or indication that he desired to remain silent, were inaudible to the interrogating officers and were not heard by them. Due to the importance of this disputed finding of fact, we have set it out below in its entirety, including the reasons given to support the trial court’s conclusions. The finding reads:

2. That said requests were inaudible to the interrogating officers and were not heard by them. The officers did not at any time hear the defendant Aiken request an attorney, or that he did not want to say anything. The officers did not ignore any request for an attorney or a desire to remain silent, for they heard no such requests and could not act upon a word or statement they did not hear. This conclusion is based upon the following:

a. All law enforcement officials who had contact with the defendant Aiken testified that they at no time heard an audible or intelligent request for an attorney from the defendant Aiken. If they had heard an audible or intelligent request or a desire to remain silent, the interrogation would have stopped;

b. Prior to the confrontation with the defendant Wheat the defendant Aiken held his head down; he spoke softly, slurred his words, and he let his voice trail off. This was confirmed when the defendant Aiken testified before the Court during the original pretrial hearing. During his testimony he slurred his words, spoke softly with an accent difficult to understand.

c. The interview room in which the questioning of defendant Aiken occurred was not soundproof and numerous noises could be heard by the interrogating officers which seriously interfered with their understanding of defendant Aiken’s responses;

d. During the interview recorded on Exhibit No. 11 the interrogating officers were not sitting next to the defendant Aiken. Instead, Sergeant Chase was across the room behind a desk and Detective Mullen was sitting in the middle of the room as shown on Exhibit Nos. 140 and 141, and defendant Aiken was not close to the microphone.

e. The trial Court and counsel experienced great difficulty in determining whether or not a request for an attorney could be heard on Exhibit No. 11. The Court’s belief that the defendant Aiken requested an attorney on possibly two occasions is based upon having heard Exhibit No. 11 played several times on the original tape machine and a new tape recorder. Many of the defendant’s answers were on the threshold of intelligibility. With the difficult time the Court and counsel have had in trying to hear what the defendant Aiken said, the Court does not believe that the interrogating officers heard, nor could possibly under all the circumstances have heard, any request for an attorney or desire to remain silent.

Aiken contends it is obvious from the continuity of questions and answers that the interrogators were listening and heard Aiken’s requests for an attorney, especially considering the expression and tone of voice of the interrogator after Aiken’s second attempt to exercise his privilege.

This factual determination was peculiarly a matter for the trial court to consider and having resolved this argument adversely to the defendant, we cannot now retry questions of fact involving substitution of our judgment for that of the trial court, where the finding attacked is based upon conflicting evidence. Haynes v. Washington, 373 U.S. 503, 515, 516, 10 L. Ed. 2d 513, 83 Sup. Ct. 1336 (1963). The trial court chose to believe the several officers who testified that if such a request were made, it was unintelligible and not heard by them, and we have carefully reviewed this factual determination. We are satisfied that its findings are in no way distorted and are fully supported by the record and therefore hold that the trial court properly found that Aiken made at least two requests for an attorney; but that such requests, when made, were, in fact, unintelligible and not heard by the officers interrogating him.

The state contends that irrespective of the uncommunicated requests or desire of Aiken to have counsel or remain silent, these rights were knowingly and intelligently waived prior to giving his confessions, by his conduct, observable demeanor and articulations.

The trial court had no difficulty in finding that any requests by Aiken for an attorney or any desire on his part to remain silent were later waived after his confrontation with the defendant Wheat. Aiken does not assign error to or dispute any of the facts relied on by the trial court in finding waiver; but he does contend that this conclusion, under the circumstances, was improperly entered as a matter of law. To better understand the reasoning of the court, we have set out its conclusions as follows:

Conclusions As To The Voluntary Nature Of Aiken’s Admissions And Confessions.

As heretofore stated, any requests for an attorney or desire to remain silent by defendant Aiken were inaudible and unintelligible to the interrogating officers. Notwithstanding said requests the defendant Aiken by his observable demeanor and actions knowingly and intentionally waived his right to counsel flowing from such requests, and his oral and written statements were given freely and voluntarily. The Court bases this conclusion upon the following findings and reasons:

a. That the defendant Wheat personally verified his statement (Exhibit No. 3) concerning the Wolf homicide at the request of the defendant Aiken. It was this verification and the desire to refute Wheat’s statement that caused the defendant Aiken to tell his side of the story as set forth in Exhibit Nos. 5, 7 and 14; (Italics ours.)

b. That within five minutes after the confrontation between Wheat and Aiken, defendant Aiken was again advised of his right to counsel and that anything he did say could be used against him in a court of law. Understanding these rights, he clearly showed a desire to give a statement. He then proceeded to give an oral statement concerning not only one but the three homicides;

c. That prior to the confrontation the defendant Aiken was sullen, quiet and withdrawn. Immediately thereafter his attitude was positive and he became alert. He spoke clearly and he appeared to be upset or angry with the defendant Wheat;

d. That the defendant Aiken was advised at least three times prior to the beginning of Exhibit No. 12 and the signing of Exhibit No. 5 that he had a right to counsel, that he had a right to remain silent, and that anything he said could be used against him in a court of law. In addition, he was advised of his rights under Article 31 of the Uniform Code of Military Justice. As demonstrated by his testimony during the original pretrial hearing, the defendant Aiken is not dumb or illiterate by any means or standards. He is not a Danny Escobedo, who was an illiterate. He has a high school education and has been trained in the military. He was well aware of these rights which had been explained to him prior to and throughout the interrogation, and knew that he did not need to answer any questions after the confrontation with the defendant Wheat. (Italics ours.)

e. That prior to the signing of Exhibit No. 7 the defendant Aiken was again advised of his right to an attorney, to remain silent, and that anything he said could be used against him in a court of law. On this occasion he was offered the opportunity to use a telephone and declined such use. While aware of his rights he proceeded to sign Exhibit No. 7 without any hesitation and without any request for assistance from anyone;

f. That defendant Aiken was given another opportunity to request counsel at 10:00 A.M. on April 26, 1965. At that time Sergeant Schoener and former Detective Dana Shearn advised him of his right to remain silent, his right to counsel, and the fact that anything he said could be used against him in a court of law. Again defendant Aiken proceeded to give a statement concerning the Wolf homicide and to draw a sketch of the homicide scene, demonstrating his knowledge of the area. It is to be noted that the interrogating officers, Sergeant Schoener and former Detective Shearn, were not present in the King County Courthouse prior to 9:00 A.M. on April 26, 1965, when the defendant Aiken signed Exhibits Nos. 5 and 7. They could not have possibly known of any request for counsel by the defendant Aiken;

g. That the Court believes the testimony of the several officers who stated that they did not at any time hear the defendant Aiken make a request for an attorney, to make a phone call, or express a desire to remain silent. That the Court believes that if such requests were made or attempted to be made by defendant Aiken, such requests were inaudible and unintelligible to such officers. That the Court further concludes that all statements made by defendant Aiken were freely and voluntarily given after having been fully and amply advised of his constitutional rights to an attorney and to remain silent. (Italics ours.)

Aiken argues there could be no knowing and intelligent waiver under these circumstances; since he believed the police officers did hear his requests for an attorney, and could only conclude that by not receiving one, his requests had been ignored; that as a result, his later incriminations were not admissible in evidence as involuntarily given due to police threats that he would be charged on every single count if he didn’t cooperate.

If Aiken’s attempts to exercise his constitutional rights were frustrated by improper police tactics in ignoring his requests or by duress, we would agree with the defendant that his statements should not have been received in evidence for consideration by the jury. The constitution enjoins all unfair interrogation practices which are likely to exert such pressures upon an individual so as to disable him from making a free and rational choice whether to speak to the police. See Miranda, supra, at 460; Escobedo v. Illinois, supra; Malloy v. Hogan, 378 U.S. 1, 12 L. Ed. 2d 653, 84 Sup. Ct. 1489 (1964). See also State v. Kelter, 71 Wn.2d 52, 426 P.2d 500 (1967).

But the record from both hearings in the present case does not support the defendant’s argument. In addition to finding that Aiken’s requests were unintelligible, the trial court expressly found that his admissions and confessions were not occasioned by any promises, threats or statements made to him by any of the questioning officers, but that he gave them solely to refute Wheat’s accusations. The police officers, therefore, not hearing Aiken’s requests for legal assistance or desire to remain silent, and unable to act on a word or statement they did not hear, did not coerce the defendant into making his admissions and confessions, or exert such pressure on him that he was unable to make a free and rational choice whether to speak to the police. Malloy, id. at 7.

We agree with the trial court that it was not a compelling atmosphere of an in-custody interrogation that caused Aiken to speak; but an independent decision on his part to refrain from further exercising his right to silence without the advice of counsel, when the self-inspired confrontation with Wheat failed in its purpose of bringing about a repudiation of Wheat’s accusation that he (Aiken) was responsible for the slaying of Daniel Wolf. The trial court properly concluded on undisputed facts that Aiken thereafter freely and voluntarily gave his three written statements admitting complicity and accusing Wheat of the murders.

We hold that Aiken’s abdication of his constitutional privilege to remain silent—the choice on his part to speak to police without counsel, was made knowingly and intelligently after he had been apprised of his rights and admittedly understood that he had the right to consult with an attorney before incriminating himself.

The defendant argues, however, that there could be no knowing and intelligent waiver of any of his constitutional rights; since he was not effectively warned, and consequently could not know, that his admission of complicity in the crimes would expose him to charges of murder and the possible death penalty, just as if he had fired the fatal bullets.

The record discloses Aiken was informed by the police before any interrogation took place that the charges he faced were murder and robbery, and there is no clear and conclusive evidence that would indicate that the defendant was misinformed, in any respect, concerning the gravity of his offense or punishment he might receive should he be found guilty.

The further finding of the trial court was that the defendant had been effectively warned at least five times orally and fully understood from his previous experiences that any incriminations he made could be used against him in a court of law.

Considering these facts, we hold, as we have with the defendant Wheat, that a defendant, so warned, is put on notice of the very situation complained of. Aiken, understanding that anything he said could be used as evidence against him in court, may not now complain he incriminated himself out of ignorances of the law. See pp. 328, 329.

Aiken contends that regardless of the findings and conclusions reached by the trial court at the supplemental hearing, he has the right, at this time, to present to a jury at a new trial all of the now available evidence bearing on the issue of the voluntariness of his confessions. The defendant’s argument, that he has süch a right, is bottomed on our recent decision in State v. Collins, 69 Wn.2d 627, 419 (1966), wherein we held, with respect to KPPP 101.20W, supra, that a 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.”

This rule goes further than the minimum federal standards of due process required for testing the voluntariness of confessions. In Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 Sup. Ct. 1774 (1964), the United States Supreme Court held that this determination by a jury is constitutionally inadequate by reason of the risk of its confusing the truth of the confession with its voluntariness; that to insure reliable results a pretrial evidentiary hearing is required; and that thereafter redetermination of the issue by the jury, while not improper, is not necessary. 378 U.S. at 380, 385. The court concluded that a new trial wasn’t necessary where the jury alone had passed on the voluntariness of Jackson’s confession and remanded the case for an evidentiary hearing exclusively before the state trial court. The court stated:

At the very least, Townsend v. Sain, 372 U.S. 293, would require a full evidentiary hearing to determine the factual context in which Jackson’s confession was given.

It does not follow, however, that Jackson is automatically entitled to a complete new trial including a retrial of the issue of guilt or innocence. . . . [I]f at the conclusion of such an evidentiary hearing in the state court on the coercion issue, it is determined that Jackson’s confession was voluntarily given, admissible in evidence, and properly to be considered by the jury, we see no constitutional necessity at that point for proceeding with a new trial, for Jackson has already been tried by a jury with the confession placed before it and has been found guilty. True, the jury in the first trial was permitted to deal with the issue of voluntariness and we do not know whether the conviction rested upon the confession; but if it did, there is no constitutional prejudice to Jackson from the New York procedure if the confession is now properly found to be voluntary and therefore admissible. If the jury relied upon it, it was entitled to do so. Of course, if the state court, at an evidentiary hearing, redetermines the facts and decides that Jackson’s confession was involuntary, there must be a new trial on guilt or innocence without the confession’s being admitted in evidence.

The rule announced above applies with equal force to claims of involuntariness based on new evidence. Townsend v. Sain, 372 U.S. 293, 9 L. Ed. 2d 770, 83 Sup. Ct. 745 (1963).

We therefore hold that the evidentiary hearing before the trial judge alone on the issue of voluntariness of Aiken’s confessions was sufficient to meet the minimum requirements of due process under the federal constitutional standards.

However, under our state procedure, RPPP 101.20W, supra, State v. Collins, supra, if the trial court has found the confession to be voluntary as a matter of law, and admissibility is not precluded by an exclusionary rule affecting the defendant’s procedural safeguards, Escobedo, supra; Massiah, supra, the jury may redetermine the question of voluntariness as a matter of fact, as it relates to the weight and credibility to be given the confession. The jury may not, however, 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. See 3 Wigmore on Evidence, § 861, p. 347 (Supp. 1964 at 135).

In the present case the jury, after assessing the weight and credibility of the confessions at the trial, has already found that they were voluntarily given; and we are satisfied that the legitimate effect of the new evidence would not change this determination; since the defendant, as a matter of law, waived his constitutional rights before making the challenged statements.

We have heretofore held from the trial court’s undisputed findings, that what really caused Aiken to admit his complicity in the slayings, was not the alleged denial of his constitutional rights by interrogating officers; but was an independent decision on his part, after the face-to-face confrontation with Wheat, to proceed without counsel and make a statement rebutting Wheat’s accusation of him as the triggerman in the Wolf slaying.

In the face of these findings, 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.

We hold, therefore, that reconsideration of the evidence by the jury at this time is not necessitated, and that the defendant Aiken is not denied due process by this determination.

Aiken contends the trial court erred in failing to grant him a reasonable opportunity to review the tape recording; that by only allowing the tape to be played once during the course of trial in a crowded courtroom, the requests for counsel were not appreciated by the defendant or his attorneys.

The record shows that after motions to produce were made by the defendant, the trial court ordered the tapes be impounded and placed in the possession of the court reporter, as an impartial party. Due to their unintelligibility the trial court had the court reporter transcribe the recordings and make copies available for the convenience of counsel. This was a proper precautionary measure followed by the trial court for the preservation of this important evidence.

The record further shows copies of the transcription were given to counsel and in addition the court allowed the playing of the tapes in open court during the pretrial hearing. The procedure followed by the trial court in the production and presentation of these tapes in evidence was within the trial court’s discretion. State v. Thompson, 54 Wn.2d 100, 338 P.2d 319 (1959); State v. Robinson, 61 Wn.2d 107, 377 P.2d 248 (1962); State v. Mesaros, 62 Wn.2d 579, 384 P.2d 372 (1963); State v. Gilman, 63 Wn.2d 7, 385 P.2d 369 (1963); and State v. Peele, 67 Wn.2d 893, 410 P.2d 599 (1966). Considering the measures taken by the trial court, and the failure of counsel a,fter the playing of the tape, to request a second playing or any other measure to aid in deciphering the unintelligible portions, we do not find this procedure followed by the trial court to be an abuse of discretion.

Remaining Assignments Of Error

Defendant Aiken contends that the standards for voluntariness of admissions or confessions contained in the court’s instruction No. 24 were incorrect, and that the instruction was erroneously given. We disagree. The instruction adequately advised the jury that confessions and admissions, in order to be considered reliable, must be freely and voluntarily given and not caused by duress or fear produced by threats. This is particularly spelled out when instruction No. 24 is considered in connection with the following special interrogatories which were answered by the jury:

Interrogatory No. 1:

Were any of the alleged oral or written admissions or confessions made by defendant Aiken caused by duress or fear produced by threats?

Answer: No (Yes or No)

Interrogatory No. 2:

Were any of said alleged admissions or confessions made by defendant Aiken obtained by means of inducements or promises?

Answer: No (Yes or No)

Interrogatory No. 3:

Were all of said alleged admissions or confessions freely and voluntarily made by defendant Aiken?

Answer: Yes (Yes or No)

Interrogatory No. 4:

In arriving at your verdict did you consider said alleged admissions or confessions?

Answer: Yes (Yes or No)

Wheat and Aiken both contend the trial court erred in denying their motions for a change of venue by reason of prejudicial pretrial publicity. We disagree. The record indicates that the news media exercised remarkable restraint to avoid prejudicing the right of the defendants to a fair trial by reason of pretrial publicity. We find nothing in the record as to the publication of incriminating statements made by the defendants that were disclosed prior to trial when motions for separate trials were interposed, and when applications for review of the order denying the motions were made to this court, which could have then been published. We are satisfied that the defendants were not denied a fair trial by reason of the pretrial publicity, and that the motions for change of venue were properly denied.

Wheat and Aiken both contend the court erred in denying their motions for separate trials; that a fair trial could not be obtained if they were tried jointly, as in this case the confessions of one involved the other; and that they were accusing each other of the commission of the crimes.

The rule is well established that the granting or denial of such a motion is within the discretion of the trial court, and will not be disturbed in the absence of a manifest abuse of discretion. RCW 10.46.100; State v. Baker, 150 Wash. 82, 272 Pac. 80 (1928); State v. Courville, 63 Wn.2d 498, 387 P.2d 938 (1963). The trial court stated in its ruling denying the motions:

it appearing . . . that if separate trials were granted the publicity resulting from the trial of the first defendant could highly prejudice the defendant subsequently tried; and if separate trials were granted, the state and military authorities would be required to keep numerous service personnel, endorsed as witnesses, within the jurisdiction for an extended period of time and that said retention could possibly interfere with military duties of said personnel; that except for the written statements of each of the defendants, a substantial portion of the evidence admissible against one defendant would probably be admissible against the other defendant; that most of the defendants’ statements are substantially consistent with each other; that separate trials, if granted, would cause an unreasonable economic burden upon King County in that the court, lawyers, witnesses and jurors would be required to participate in two long and expensive trials rather than one; ....

That the granting of separate trials would cause the trial of one of the two defendants to be delayed an unreasonable length of time; that at the present time, the defendants have not made a showing as to whether their defenses at the time of trial will be antagonistic other than the special plea of insanity by defendant Wheat and the contradictory portions of defendants’ statements; that the court will instruct the jury, as often as it deems necessary, that they cannot consider as evidence against either one of the defendants the out of court statements of one codefendant made out of the presence and hearing of the other codefendant; that at this time the statements of the defendants have not been admitted into evidence; that the court does not know whether said statements are admissible; that when two defendants are accused of the same crime arising out of the same circumstances, the Washington Supreme Court and the United States Supreme Court have held that it is not an abuse of discretion to try them together, ....

The record shows the special plea of temporary insanity by defendant Wheat was withdrawn before trial. It further shows that on 12 separate occasions during the trial the jury was warned that the confessions and statements made by the defendants were to be considered only against the person making the statements. The trial court did not abuse its discretion in denying the motions for separate trials. See Delli Paoli v. United States, 352 U.S. 232, 1 L. Ed. 2d 278, 77 Sup. Ct. 294 (1957).

Aiken contends that the court erred in denying his motion for dismissal of count 3, with which he was charged in the information. This count related to the James Harp homicide, in which the defendant contends he was asleep in Wheat’s car when the crime was being committed. A review of the record shows the following:

The defendants were together from early Friday evening, on April 23, 1965, until dawn the next morning after the murder. Aiken stated that Wheat suggested they “hit” the Douglas station. Aiken knew Wheat left the car to go into the station. Aiken knew how James Harp was dressed. Aiken was in a position to observe all entrances to the service station. He was armed with a .25 caliber automatic pistol. Aiken’s .22 caliber pistol was used to kill James Harp. Aiken participated with Wheat in two prior robberies of service stations and murders of their attendants. The pattern followed in those instances was very similar to the robbery of the Douglas Service Station and the James Harp homicide. The jury was entitled to disbelieve the statements of Aiken that he was asleep and did not participate. There was ample evidence in the record which, if believed by the jury, together with the reasonable inferences to be drawn therefrom, would justify the jury in finding Aiken was an accomplice in the robbery of the Douglas Service Station and the Harp homicide.

Aiken further contends it was prejudicial to him to introduce photographs of Harp and repair claim checks regarding Harp’s wristwatch. These contended errors are without merit. They were material to evidence of the robbery and the Harp homicide, to which the jury was entitled to find that Aiken was an accomplice.

Aiken contends the court erred in giving instruction No. 14 defining aiding and abetting, in that it could be inferred that the presence of a person at the scene of the crime, even if asleep, would be sufficient to sustain a conviction. RCW 9.01.030 defines a principal as including one who aids or abets the commission of an offense, who may be present or absent at the scene of the crime. The instruction spells out that in order for a person to be an aider or abettor by his presence, he must be ready to assist or must assist the perpetrator of the crime by his presence. Instruction No. 14 is a correct statement of the law in conformity with the statute, supra, and was properly given. State v. Clark, 26 Wn.2d 160, 173 P.2d 189 (1946). State v. Redden, 71 Wn.2d 147, 426 P.2d 854 (1967).

Wheat contends that the court erred in failing to grant seven of his challenges for cause in his voir dire examination of veniremen in the selection of the jury, and that he was thereby required to exercise his peremptory challenges. There can be no prejudicial error resulting therefrom since the defendants were allowed 12 additional peremptory challenges not provided by statute. Moreover, there was no objection made to the court’s denial of Wheat’s challenges for cause after his peremptory challenges had been exhausted, except in the case of juror Symington. This juror indicated that he was in favor of the death penalty by reason of criminals being turned loose by the courts. The juror ultimately stated, in regard to imposing the death penalty, that he “. . . would give every consideration before I would reach that decision,” and that he “. . . would be impartial.” The granting or denial of a challenge for cause is within the discretion of the trial judge, and will not constitute reversible error in the absence of a manifest abuse of discretion. We see no manifest abuse of discretion in this instance.

Wheat further contends, however, that it was improper for the trial court to make inquiry into the juror’s qualifications which constituted a comment on the evidence. The inquiry of the trial court went only to the ability of the veniremen to serve as fair and impartial jurors and was proper.

Wheat contends the court erred in excusing 18 veniremen for cause who indicated they were not in favor of the death penalty. This contention is without merit. No venireman should be permitted to serve as a juror unless he is willing to apply the laws of this state to a proper case. The defendant’s contention is contrary to the express provisions of RCW 10.49.050:

Challenge for cause—Capital case—Conscientious scruples. No person whose opinions are such as to preclude him from finding any defendant guilty of an offense punishable with death shall be compelled or allowed to serve as a juror on the trial of any indictment or information for such an offense.

Also see State v. Mahoney, 120 Wash. 633, 208 Pac. 37 (1922); State v. Riley, 126 Wash. 256, 218 Pac. 238 (1923); State v. Leuch, 198 Wash. 331, 88 P.2d 440 (1939).

Wheat contends it was error to seat 12 veniremen prior to the beginning of questions. This contention is without merit. This goes only to the procedure of examination of the veniremen on their qualifications as jurors. We see no rights of the defendant’s participation in the selection of the jury denied by this procedure.

Wheat contends the prosecuting attorney committed misconduct in his opening statement, in detailing the manner in which the shots were fired at the time one of the victims was attempting to rise from the floor; that this was highly inflammatory and prejudicial, resulting in a denial of a fair trial to the defendants.

The record shows that these statements were prefaced with the warning that they were not evidence but an outline of what the state intended to prove at the trial. The prosecuting attorney was entitled to make such statements as long as they were supported by evidence or reasonable inferences therefrom, and were material to the issues of the case. The record discloses that evidence was introduced which, with the reasonable inferences therefrom, supported these statements by the prosecutor. They were relevant to show the viciousness and callousness of the killings for the jury’s consideration of the degree of punishment to be imposed, in the event of a finding of the defendants’ guilt.

Defendant Wheat contends the trial court erred in failing to permit two expert witnesses to give testimony to the jury concerning rehabilitation of persons convicted of first-degree murder. The record shows these witnesses had never interviewed the defendants in this case. The materiality of their testimony, if any, and the qualifications of the purported experts were matters for the trial court to determine in the exercise of its discretion. We find no abuse of its discretion in this regard.

Aiken and Wheat both contend the trial court erred in failing to suppress the introduction in evidence of the .22 caliber revolver seized upon the search of Wheat’s duffel bag, on grounds that it was the fruit of an unlawful search and seizure. The trial court after hearing extended testimony on this issue in the pretrial hearing concluded in an undisputed finding that the search was voluntarily consented to by Wheat, and that there was, therefore, no unlawful seizure of the revolver. The trial court did not err in admitting this evidence. State v. Johnson, 71 Wn.2d 239, 427 P.2d 705 (1967).

Wheat contends the court erred in refusing to permit Aiken’s attorney, Anthony Savage, Jr., to give testimony as to Wheat’s emotional state, as disclosed by statements of Airman Milton Johnson, at the time of his detention at Paine Field. This constituted hearsay testimony and was inadmissible. The ruling of the trial court was correct.

Wheat asserts the trial court erred in permitting the FBI ballistics expert to testify that spent cartridges found at the homicides were ejected from Aiken’s revolver, contending that they were not traced as to (1) the persons handling them through the different agencies while the tests were made; (2) that the evidence was hearsay as the defendant was not present when the tests were made; and (3) the conditions under which the tests were made were not under conditions corresponding to those present when the shots were fired. These contentions go primarily to the sufficiency of the evidence. We find evidence to support the trial court’s determination of the adequate identification of the spent cartridges, and that the tests were under the direction of the expert who was qualified to give his opinion for the jury’s consideration. As to the contention of hearsay, in that the tests were not a part of the trial, the expert having once been qualified was entitled to relate the test conducted and express his opinion in relation thereto. The jury had the right to give the expert testimony the weight to which it believed it was entitled, upon which the jury was adequately instructed. See State v. Leuch, supra; State v. Gruber, 150 Wash. 66, 272 Pac. 89 (1928).

Wheat contends a GT-1 automobile battery was erroneously introduced in evidence as it was not sufficiently identified. This contention is without merit. The evidence shows it was a GT-1 battery of the type missing from the inventory of the Time Oil Service Station, which was checked 3 days before the robbery, and which was after-wards found in the defendant’s car. The assigned error goes to the weight of the evidence rather than to the admissibility. State v. Duree, 52 Wn.2d 324, 324 P.2d 1074 (1958).

Wheat contends the trial court erred in refusing to instruct the jury on the offense of second-degree murder. There is no evidence to support second-degree murder in the record. The defendants were guilty or not guilty of first-degree murder only.

Defendant Aiken contends the trial court erred in not granting him a new trial on the basis of the statement made by the prosecuting attorney in his argument to the jury relative to Aiken’s purchase and possession of a .25 caliber revolver; and that there was no evidence to justify such comments. We need not detail the comments and the evidence. Our examination of the record discloses there were reasonable inferences that could be drawn from the evidence to justify such comments.

Finally, it is contended by Wheat that the trial court erred in requiring him, before addressing the jury, to put in writing his unsworn statement and not to go beyond that statement. We find no error in this procedure. It is within the discretion of the trial court to allow a defendant represented by counsel to make a separate address to the jury. See People v. Richardson, 4 N.Y.2d 224, 149 N.E.2d 875 (1958). (Const, art. 1, § 22, (amendment 10)) The trial court, mindful that Wheat had not taken the witness stand in his own defense, correctly advised him that in making his own statement to the jury, he would be open to cross-examination if he discussed facts not covered by the evidence in the case. As the defendant was allowed to make his statement to the jury, subject only to this limitation, we see no error.

We are satisfied that both defendants Wheat and Aiken received a fair trial. The judgments and sentences entered upon the jury verdicts are affirmed.

Finley, C. J., Hill, Rosellini, and Hale, JJ., concur.