GOODWIN, J.
This is an appeal from a conviction of violating ORS 163.280 (armed robbery). The only substantial issue is whether the defendant’s confession was admissible.
A tavern was robbed at gunpoint by two men. A short time later one man was found in an automobile which answered a description given by witnesses. The automobile was stopped by a police officer and the defendant Atherton was placed under arrest and taken to the city jail.
At the trial, during a hearing out of the presence of the jury as required under State v. Brewton, 238 Or 590, 603, 395 P2d 874 (1964), an officer testified:
“Well, I brought him to the robbery office and started to inform him of his legal rights, at which time he interrupted us and informed us that he had been in contact with his attorney, Milton Brown, and had been advised not to make any statements.”
There was no further effort to question the defendant that day.
Two days later, a second officer saw the defendant in jail. The second officer gave this account of his conversation with the defendant:
“* * * [A]t which time I identified myself, and told him what he was being charged with or accused of, and that it was not necessary for him to talk 'to me about the case without first having legal advice of counsel. At this time he informed me that be had already retained counsel, and that [624]*624until such time as he had seen his counsel, he had nothing more to say. At this time, why, I immediately left his presence.”
The defendant must have said something more to this officer, however, for the officer went on to testify that he told the defendant before leaving him that he would check out certain alibi information which the defendant apparently had given the officer.
The next day, according to the officer’s recollection, he reported back to the defendant concerning the alibi. The defendant then became upset, the officer stated, and volunteered the identification of the “second subject involved,” one Roberts.
The next day, the fourth day after the defendant’s arrest, the officer again visited the defendant in jail. The defendant’s attorney had not yet visited the defendant, apparently because he was occupied with other matters. In any event, the defendant reported to the officer that he had not seen his attorney. The officer questioned him, however, about the holdup, and the defendant confessed.
The defendant took the stand and told his version of the interrogation. He recalled the time in jail as four days of more or less incessant questioning. He denied that he had been advised of his right to remain silent, and denied that the officers had advised bim that he could see his attorney any time he wanted to.
At no time has the defendant contended that there was any wrongful delay after his arrest in bringing him before a magistrate. Accordingly, we are not called upon to decide whether the delay, if challenged, in itself would have been a ground for excluding the confession.
The only errors assigned in this appeal are based [625]*625upon the defendant’s contention that his confession was obtained by police interrogation in violation of his rights as set forth in State v. Neely, 239 Or 487, 395 P2d 557, 398 P2d 482 (1965). He asks us to rule as a matter of law that the confession was inadmissible despite the findings of the trial court that the defendant had been effectively advised of his rights and that his confession thereafter was voluntarily made.
The record affords no basis for this court to overturn the trial court’s findings of fact. The defendant, faced with a specific finding that he had been effectively advised of his rights, asks this court now to extend the holding in State v. Neely, supra, to hold, as a matter of law, that any police interrogation after arrest is illegal. The defendant contends that such an implementation of the Sixth Amendment right to counsel is required by the decision in Escobedo v. Illinois, 378 US 478, 84 S Ct 1758, 12 L Ed2d 977 (1964). The effect of such a holding would be to make irrelevant the issue in the Brewton case of voluntariness under the Fifth Amendment.
There are two factual differences between the interrogation of this defendant and the interrogation of the celebrated Danny Escobedo. The police did warn this defendant of his right to remain silent. The police did not warn Escobedo of his right to remain silent. The failure to warn Escobedo of his right to remain silent was deemed important in light of the second difference between the two cases. In Escobedo, the police actively interfered with the attorney-client relationship. The police kept the prisoner and his attorney apart despite requests from both for consultation. In the case at bar there is no claim either of police interference or of a denial of an opportunity to consult.
[626]*626The Escobedo case, and subsequently, in this state, the Neely case, held .that a statement taken from a person under arrest who had not been effectively advised of his right to remain silent, and who had been denied the assistance of counsel (or, as in Neely, not informed of ‘his right to counsel), cannot be received in evidence. Neither case requires the exclusion of a voluntary statement obtained from a prisoner who has received and has understood the requisite advice concerning his rights.
In Neely we held that the right to counsel and the right to remain silent are substantially without meaning to a person under arrest unless he knows that he has these rights. There is no waiver without knowledge. State v. Keller, 240 Or 442, 402 P2d 521 (1965). Conversely, with knowledge, there can be a waiver. In State v. Keller, we held that whether or not the defendant was adequately advised of and waived his rights is a question of fact which, like that of voluntariness, the trial court must decide in a preliminary way before any of the evidence concerning the statement can be heard by the jury.
We adhere to the rule that the prosecution, if it expects to use statements made by a person under arrest, must show that, prior to his interrogation, he was advised both of his right to remain silent and of his right to the assistance of counsel. Obviously,* after showing that the defendant had been advised of his rights, the state must also show that any statement offered in evidence was voluntarily given. The courts will view with suspicion the voluntariness of a statement taken from a prisoner whose reluctance to talk to the police in the absence of counsel had to be worn away by persistent interrogation.
[627]*627In the case at bar, the trial court found, as facts: (1) the defendant knew that he was not required to talk; (2) he knew that he could consult counsel whenever he and his attorney could get together; and (3) with knowledge of his rights he was willing nonetheless to talk to the police in the absence of his counsel.
If the defendant was properly advised, voluntariness then becomes a question of fact. Some factors that may be relevant in the trial judge’s determination of the issue of voluntariness are described in recent decisions of the United States Supreme Court. See, e.g., Jackson v. Denno,
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GOODWIN, J.
This is an appeal from a conviction of violating ORS 163.280 (armed robbery). The only substantial issue is whether the defendant’s confession was admissible.
A tavern was robbed at gunpoint by two men. A short time later one man was found in an automobile which answered a description given by witnesses. The automobile was stopped by a police officer and the defendant Atherton was placed under arrest and taken to the city jail.
At the trial, during a hearing out of the presence of the jury as required under State v. Brewton, 238 Or 590, 603, 395 P2d 874 (1964), an officer testified:
“Well, I brought him to the robbery office and started to inform him of his legal rights, at which time he interrupted us and informed us that he had been in contact with his attorney, Milton Brown, and had been advised not to make any statements.”
There was no further effort to question the defendant that day.
Two days later, a second officer saw the defendant in jail. The second officer gave this account of his conversation with the defendant:
“* * * [A]t which time I identified myself, and told him what he was being charged with or accused of, and that it was not necessary for him to talk 'to me about the case without first having legal advice of counsel. At this time he informed me that be had already retained counsel, and that [624]*624until such time as he had seen his counsel, he had nothing more to say. At this time, why, I immediately left his presence.”
The defendant must have said something more to this officer, however, for the officer went on to testify that he told the defendant before leaving him that he would check out certain alibi information which the defendant apparently had given the officer.
The next day, according to the officer’s recollection, he reported back to the defendant concerning the alibi. The defendant then became upset, the officer stated, and volunteered the identification of the “second subject involved,” one Roberts.
The next day, the fourth day after the defendant’s arrest, the officer again visited the defendant in jail. The defendant’s attorney had not yet visited the defendant, apparently because he was occupied with other matters. In any event, the defendant reported to the officer that he had not seen his attorney. The officer questioned him, however, about the holdup, and the defendant confessed.
The defendant took the stand and told his version of the interrogation. He recalled the time in jail as four days of more or less incessant questioning. He denied that he had been advised of his right to remain silent, and denied that the officers had advised bim that he could see his attorney any time he wanted to.
At no time has the defendant contended that there was any wrongful delay after his arrest in bringing him before a magistrate. Accordingly, we are not called upon to decide whether the delay, if challenged, in itself would have been a ground for excluding the confession.
The only errors assigned in this appeal are based [625]*625upon the defendant’s contention that his confession was obtained by police interrogation in violation of his rights as set forth in State v. Neely, 239 Or 487, 395 P2d 557, 398 P2d 482 (1965). He asks us to rule as a matter of law that the confession was inadmissible despite the findings of the trial court that the defendant had been effectively advised of his rights and that his confession thereafter was voluntarily made.
The record affords no basis for this court to overturn the trial court’s findings of fact. The defendant, faced with a specific finding that he had been effectively advised of his rights, asks this court now to extend the holding in State v. Neely, supra, to hold, as a matter of law, that any police interrogation after arrest is illegal. The defendant contends that such an implementation of the Sixth Amendment right to counsel is required by the decision in Escobedo v. Illinois, 378 US 478, 84 S Ct 1758, 12 L Ed2d 977 (1964). The effect of such a holding would be to make irrelevant the issue in the Brewton case of voluntariness under the Fifth Amendment.
There are two factual differences between the interrogation of this defendant and the interrogation of the celebrated Danny Escobedo. The police did warn this defendant of his right to remain silent. The police did not warn Escobedo of his right to remain silent. The failure to warn Escobedo of his right to remain silent was deemed important in light of the second difference between the two cases. In Escobedo, the police actively interfered with the attorney-client relationship. The police kept the prisoner and his attorney apart despite requests from both for consultation. In the case at bar there is no claim either of police interference or of a denial of an opportunity to consult.
[626]*626The Escobedo case, and subsequently, in this state, the Neely case, held .that a statement taken from a person under arrest who had not been effectively advised of his right to remain silent, and who had been denied the assistance of counsel (or, as in Neely, not informed of ‘his right to counsel), cannot be received in evidence. Neither case requires the exclusion of a voluntary statement obtained from a prisoner who has received and has understood the requisite advice concerning his rights.
In Neely we held that the right to counsel and the right to remain silent are substantially without meaning to a person under arrest unless he knows that he has these rights. There is no waiver without knowledge. State v. Keller, 240 Or 442, 402 P2d 521 (1965). Conversely, with knowledge, there can be a waiver. In State v. Keller, we held that whether or not the defendant was adequately advised of and waived his rights is a question of fact which, like that of voluntariness, the trial court must decide in a preliminary way before any of the evidence concerning the statement can be heard by the jury.
We adhere to the rule that the prosecution, if it expects to use statements made by a person under arrest, must show that, prior to his interrogation, he was advised both of his right to remain silent and of his right to the assistance of counsel. Obviously,* after showing that the defendant had been advised of his rights, the state must also show that any statement offered in evidence was voluntarily given. The courts will view with suspicion the voluntariness of a statement taken from a prisoner whose reluctance to talk to the police in the absence of counsel had to be worn away by persistent interrogation.
[627]*627In the case at bar, the trial court found, as facts: (1) the defendant knew that he was not required to talk; (2) he knew that he could consult counsel whenever he and his attorney could get together; and (3) with knowledge of his rights he was willing nonetheless to talk to the police in the absence of his counsel.
If the defendant was properly advised, voluntariness then becomes a question of fact. Some factors that may be relevant in the trial judge’s determination of the issue of voluntariness are described in recent decisions of the United States Supreme Court. See, e.g., Jackson v. Denno, 378 US 368, 84 S Ct 1774, 12 L Ed2d 908, 1 ALR3d 1205 (1964); Haynes v. Washington, 373 US 503, 83 S Ct 1336, 10 L Ed2d 513 (1963); Blackburn v. Alabama, 361 US 199, 80 S Ct 274, 4 L Ed2d 242 (1960).
The defendant contends that decisions prior to Massiah v. United States, 377 US 201, 84 S Ct 1199, 12 L Ed2d 246 (1964) can no longer be relied upon to justify the admission of voluntary confessions made in the absence of counsel. In the Massiah ease, however, the police obtained the incriminating statements by the use of a hidden microphone, and with the help of an informer believed by the defendant to be an ally. There was no voluntary disclosure of evidence to the police by a suspect who knew that he was talking to the police. The Massiah case therefore has to be embellished before it can be said to hold that the police may never talk to a defendant who has an attorney unless the attorney is present.
While the New York courts have, apparently,
One of the notions which underlies the retributive aspects of criminal justice is that the criminal knew what he was doing when he committed the crime. After a person is arrested and accused of a crime, the Fifth Amendment denies the government the right to force him to admit his guilt. The Sixth Amendment requires the government to advise him of his right to counsel and see that he has an attorney, if he wants one, at all times after the adversary phase of the prosecution has commenced. Nothing, however, in the philosophy underlying these two great guardians of freedom requires the police to refrain from discussing a crime with a suspect who wants to discuss it, if he has been fully advised of his rights and has decided to talk in spite of his knowledge that he need not do so. Once it is shown that an accused knew what he was doing when he talked to the police, and that he did so with full knowledge of his rights, he ought to be just as responsible for his decision to talk as he is for his decision to commit the crime in the first place. See concurring opinion of Traynor, J., in People v. Garner, 57 Cal2d 135, 156, 18 Cal Rptr 40, 53, 367 P2d 680, 693 (1961), cert. denied 370 US 929, 82 S Ct 1571, 8 L Ed2d 508 (1962). The confession in the case at bar was admissible.
Finally, the defendant challenges a ruling which denied his motion to strike certain testimony by a police officer.
After a preliminary ruling that the jury could hear the evidence concerning the statements [629]*629which the defendant had made to the police, one of the officers began to testify. During this testimony, which was narrative in form, the officer told the jury how he happened to be talking with the defendant on the occasion when the confession was made. The testimony objected to was as follows:
“I told him that I had checked out the time element that was involved in this holdup and the persons that he had told me to contact, and I told him of my findings in regard to this, and at this time I pressed him a little bit as to a possible identification of the second subject involved.”
An objection and motion to strike interrupted further development of this line of testimony. Error is assigned because the jury was not instructed to disregard the officer’s testimony. Nothing that the jury heard from the officer informed them directly that the defendant’s alibi may have been a fabrication. Perhaps, however, such an inference could have been constructed from the officer’s testimony. But the officer did not attempt to insert any hearsay evidence. The objection was properly overruled. The fact that damaging inferences can be drawn from testimony does not make testimony inadmissible. The evidence which the jury heard was competent evidence, and it was relevant on the issue of voluntariness. There was no error in receiving it.
Affirmed.
People v. Meyer, 11 NY2d 162, 182 NE2d 103 (1962).