Finley, C. J.
In the trial court Raymond L. Haynes, the appellant herein, and his brother, Keith E. Haynes, were found guilty by a jury on a charge of robbery of a filling station in Spokane, Washington, at approximately 9:00 p. m., on the evening of December 19, 1957.
Shortly after the occurrence of the robbery, the two brothers were apprehended, arrested, and taken to the police station in Spokane. There, they were positively identified by the owner of the filling station and his wife as the men who had committed the robbery. Both men were booked for investigation on an open charge on the so-called “small book” of the Spokane police department. Around noon on the following day, both appellant and his brother, in the presence of a deputy prosecuting attorney, signed statements in which they admitted having committed the robbery. They were then formally charged with the crime, and after an appearance before a police judge they were taken to the county jail.
At the trial the state offered in evidence the signed statements of appellant and his brother. Appellant objected on two grounds: (a) That the statements offered were not confessions in that they did not contain a clear and unequivocal expression of guilt; and (b) that admission of the statements would violate the constitutional rights of the appellant with respect to self incrimination by forcing him, against his will, to offer evidence against himself. The trial court overruled the objections and admitted the statements. Appellant’s principal assignment of error concerns this ruling of the trial court.
Appellant does not now contend that the statements were not confessions. He urges that, as confessions, the statements were erroneously admitted, because the circum[719]*719stances surrounding their making rendered them involuntary and thus inadmissible under the due-process provisions of the fourteenth admendment to the United States Constitution and Art. I, § 3, of the Washington state constitution. The record discloses that the trial court instructed the jury not to consider any out-of-court admissions or statements of one defendant as evidence against the other defendant, and appellant has made no assertion that this instruction was violated. Consequently, we shall confine our attention to the contention of appellant with respect to his own confession.
Before discussing this contention, we must dispose of the state’s argument that the objections (made-to prevent the confession from being considered by the jury) did not specifically raise the question of whether the confession was made voluntarily. It seems to us that appellant’s objection — that admission of the confession would force him to offer evidence against himself and against his will— was sufficient to place the question before the trial court as to whether the confession was voluntary. The record discloses that, after admitting the confession, the trial judge submitted it to the jury under instructions to disregard it if they found it had been made involuntarily. We think this in itself indicates that the trial court had been properly informed by the objection and was well aware of the fact that voluntariness of the confession was in issue.
We now turn to appellant’s argument that admission of the confession into evidence violated his rights to due process under the Federal and state constitutions.
It is clear that decisions of the Supreme Court construing the fourteenth admendment to the United States Constitution prohibit the use of an involuntary confession against a defendant in a criminal action. See, for example, Ashcraft v. Tennessee (1944), 322 U. S. 143, 88 L. Ed. 1192, 64 S. Ct. 921, and cases cited therein. However, the above-noted instruction given by the trial judge not only indicates he was aware that voluntariness of appellant’s confession was in issue, but it also indicates that the confession was only conditionally admitted as evidence against the appel[720]*720lant. The final determination as to whether it was a voluntary confession, which might be considered as evidence against the appellant, was made by the jury and not by the trial judge. The fourteenth amendment to the United States Constitution does not forbid jury determination of the issue of voluntariness of a confession. Stein v. New York (1953), 346 U. S. 156, 97 L. Ed. 1522, 73 S. Ct. 1077. This, plus the fact that appropriate instructions were given to the jury on the question of voluntariness of the confession, should, we think, end this matter.
We say this despite the fact that recently the procedure in our state for determining the voluntariness of a confession has been altered and, we think, improved in terms of fairness and protection to the criminally accused by the adoption of Rule of Pleading, Practice and Procedure 101.-20W, ROW Vol. 0, as amended, effective January 2, 1961. Thereunder, provision is made for a special hearing before the trial court out of the presence of the jury on the question of voluntariness of a confession. However, the procedure which was in effect and actually followed at the time the instant case was tried was not necessarily an unfair one. Essentially, it delegated to the jury rather than to the trial judge the responsibility for determining the credibility and evidentiary significance to be attributed to a confession. In this connection perhaps the parallel should be noted that in our system of law we still entrust to the jury rather than the judge the responsibility for determining the perhaps even more crucial ultimate question of guilt or innocence. Furthermore, it may be noteworthy that there seems to be no serious movement afoot in the Federal or other appellate courts, among the law reviews or text writers to reverse this latter facet of our criminal procedure. As described in State v. Van Brunt (1944), 22 Wn. (2d) 103, 154 P. (2d) 606, the procedure extant re confessions and applied in the instant case was as follows:
“ . . . where an issue of fact arises as to the question of the influence of fear produced by threats and confessions made under inducement, it is not a question of law for the court to decide but is a question of fact for the jury under [721]*721proper instructions. Where threats or inducements are conceded by the state or where facts are admitted which as a matter of law constituted threats or inducements, it is a question of law for the court.”
The confession in the instant case was admitted into evidence by the trial judge. It was submitted to the jury under instructions, which were appropriate to the factual issue of voluntariness. The question before us on this appeal under the Van Brunt decision, as excerpted above, is whether the state had conceded or admitted that the confession was made under the influence of threats or inducements. If the answer is in the affirmative, then the trial judge erred as a matter of law in admitting the confession into evidence and allowing the jury to consider it in determining the question of guilt.
We have noted that the confession in issue was made at the close of an approximately fourteen-hour period, during which the appellant was in the Spokane police station on the so-called “small book,” and that he was not formally charged with the robbery until after the confession was made. Appellant makes no charge that he was physically mistreated during this period, or that he was deprived of sleep or food.
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Finley, C. J.
In the trial court Raymond L. Haynes, the appellant herein, and his brother, Keith E. Haynes, were found guilty by a jury on a charge of robbery of a filling station in Spokane, Washington, at approximately 9:00 p. m., on the evening of December 19, 1957.
Shortly after the occurrence of the robbery, the two brothers were apprehended, arrested, and taken to the police station in Spokane. There, they were positively identified by the owner of the filling station and his wife as the men who had committed the robbery. Both men were booked for investigation on an open charge on the so-called “small book” of the Spokane police department. Around noon on the following day, both appellant and his brother, in the presence of a deputy prosecuting attorney, signed statements in which they admitted having committed the robbery. They were then formally charged with the crime, and after an appearance before a police judge they were taken to the county jail.
At the trial the state offered in evidence the signed statements of appellant and his brother. Appellant objected on two grounds: (a) That the statements offered were not confessions in that they did not contain a clear and unequivocal expression of guilt; and (b) that admission of the statements would violate the constitutional rights of the appellant with respect to self incrimination by forcing him, against his will, to offer evidence against himself. The trial court overruled the objections and admitted the statements. Appellant’s principal assignment of error concerns this ruling of the trial court.
Appellant does not now contend that the statements were not confessions. He urges that, as confessions, the statements were erroneously admitted, because the circum[719]*719stances surrounding their making rendered them involuntary and thus inadmissible under the due-process provisions of the fourteenth admendment to the United States Constitution and Art. I, § 3, of the Washington state constitution. The record discloses that the trial court instructed the jury not to consider any out-of-court admissions or statements of one defendant as evidence against the other defendant, and appellant has made no assertion that this instruction was violated. Consequently, we shall confine our attention to the contention of appellant with respect to his own confession.
Before discussing this contention, we must dispose of the state’s argument that the objections (made-to prevent the confession from being considered by the jury) did not specifically raise the question of whether the confession was made voluntarily. It seems to us that appellant’s objection — that admission of the confession would force him to offer evidence against himself and against his will— was sufficient to place the question before the trial court as to whether the confession was voluntary. The record discloses that, after admitting the confession, the trial judge submitted it to the jury under instructions to disregard it if they found it had been made involuntarily. We think this in itself indicates that the trial court had been properly informed by the objection and was well aware of the fact that voluntariness of the confession was in issue.
We now turn to appellant’s argument that admission of the confession into evidence violated his rights to due process under the Federal and state constitutions.
It is clear that decisions of the Supreme Court construing the fourteenth admendment to the United States Constitution prohibit the use of an involuntary confession against a defendant in a criminal action. See, for example, Ashcraft v. Tennessee (1944), 322 U. S. 143, 88 L. Ed. 1192, 64 S. Ct. 921, and cases cited therein. However, the above-noted instruction given by the trial judge not only indicates he was aware that voluntariness of appellant’s confession was in issue, but it also indicates that the confession was only conditionally admitted as evidence against the appel[720]*720lant. The final determination as to whether it was a voluntary confession, which might be considered as evidence against the appellant, was made by the jury and not by the trial judge. The fourteenth amendment to the United States Constitution does not forbid jury determination of the issue of voluntariness of a confession. Stein v. New York (1953), 346 U. S. 156, 97 L. Ed. 1522, 73 S. Ct. 1077. This, plus the fact that appropriate instructions were given to the jury on the question of voluntariness of the confession, should, we think, end this matter.
We say this despite the fact that recently the procedure in our state for determining the voluntariness of a confession has been altered and, we think, improved in terms of fairness and protection to the criminally accused by the adoption of Rule of Pleading, Practice and Procedure 101.-20W, ROW Vol. 0, as amended, effective January 2, 1961. Thereunder, provision is made for a special hearing before the trial court out of the presence of the jury on the question of voluntariness of a confession. However, the procedure which was in effect and actually followed at the time the instant case was tried was not necessarily an unfair one. Essentially, it delegated to the jury rather than to the trial judge the responsibility for determining the credibility and evidentiary significance to be attributed to a confession. In this connection perhaps the parallel should be noted that in our system of law we still entrust to the jury rather than the judge the responsibility for determining the perhaps even more crucial ultimate question of guilt or innocence. Furthermore, it may be noteworthy that there seems to be no serious movement afoot in the Federal or other appellate courts, among the law reviews or text writers to reverse this latter facet of our criminal procedure. As described in State v. Van Brunt (1944), 22 Wn. (2d) 103, 154 P. (2d) 606, the procedure extant re confessions and applied in the instant case was as follows:
“ . . . where an issue of fact arises as to the question of the influence of fear produced by threats and confessions made under inducement, it is not a question of law for the court to decide but is a question of fact for the jury under [721]*721proper instructions. Where threats or inducements are conceded by the state or where facts are admitted which as a matter of law constituted threats or inducements, it is a question of law for the court.”
The confession in the instant case was admitted into evidence by the trial judge. It was submitted to the jury under instructions, which were appropriate to the factual issue of voluntariness. The question before us on this appeal under the Van Brunt decision, as excerpted above, is whether the state had conceded or admitted that the confession was made under the influence of threats or inducements. If the answer is in the affirmative, then the trial judge erred as a matter of law in admitting the confession into evidence and allowing the jury to consider it in determining the question of guilt.
We have noted that the confession in issue was made at the close of an approximately fourteen-hour period, during which the appellant was in the Spokane police station on the so-called “small book,” and that he was not formally charged with the robbery until after the confession was made. Appellant makes no charge that he was physically mistreated during this period, or that he was deprived of sleep or food. Specifically, he claims (a) that he was not allowed to telephone his wife during this period, and (b) that he was told he could call her only after he had made a statement and was formally charged. This, as a condition relative to the making of a statement, is not conceded by the state.
Appellant’s theory emphasizes that the confession was involuntary because it was procured in violation of RCW 9.33.020(5), which provides:
“ (5) No officer or person having the custody and control of the body or liberty of any person under arrest, shall refuse permission to such arrested person to communicate with his friends or with an attorney, nor subject any person under arrest to any form of personal violence, intimidation, indignity or threats for the purpose of extorting from such person incriminating statements or a confession. Any per[722]*722son violating the provisions of this section shall be guilty of a misdemeanor.” (Italics ours.)
In State v. Miller (1912), 68 Wash. 239, 122 Pac. 1066, in which the prosecution admitted that the defendant had been kept in a dark cell for eight days and was threatened with additional prosecutions if he did not confess, this court held that a confession induced by a violation of RCW 9.33.020(5) was inadmissible under RCW 10.58.030. As we view it, the standard or rule established by the statute breaks down into three facets: (1) a refusal by the police to allow the arrested person to communicate with his friends (obviously including family) or an attorney, or subjection of the suspect to personal violence or threats, etc.; (2) done for the purpose of inducing the arrested person to make incriminating statements; and (3) actually inducing the particular confession under attack. The record in the instant case discloses that the trial judge was aware of this statutory rule for, in addition to giving the jury a general instruction to disregard any confessions they found to be involuntary, he instructed them that if they found that any officer having custody of the appellant denied him communication with his friends or an attorney they could consider such denial in relation to the question of the voluntariness of any statement made. Therefore, we may assume that, in admitting the confession into evidence, the trial judge decided, under the test set out in State v. Van Brunt, supra, that the state had neither conceded nor admitted, as a matter of law, that the confession was induced by a denial of communication contrary to RCW 9.33.020(5). The appellant’s contention that the trial court erred in admitting the confession has merit only if the decision in Van Brunt was erroneous.
Reviewing the record, it appears that at the time the confession was offered in evidence by the state the following testimony was before the court:
(1) An admission on cross-examination by one of the police officers who had been called by the state that the confession had been made while the appellant was on the “small book”;
[723]*723(2) A further admission that persons on the “small book” were generally allowed no phone calls, and that the appellant may have been refused permission to call his wife during the period prior to his making the confession;
(3) The following question on cross-examination by the appellant’s counsel, and answer by one of the police officers:
“Q. At the time you were interrogating the defendant, Raymond Haynes, did you make a statement to him; in effect, that you can’t make a phone call until we get a statement? A. I don’t remember making any such statement.”
Finally, the confession itself concluded with the following:
“Q. Have we made you any threats or promises? A. No. Q. Has [sic] any police officers made you any promises or threats? A. No — except that the Lieutenant promised me that as soon as I was booked that I could call my wife. Q. You are being held for investigation — you haven’t been booked yet. When you are, you will be able to phone your wife.”
Although it appears from the foregoing that the state’s witnesses may be said to have admitted that appellant was refused permission to call his wife until he was formally booked, and that, as things worked out, he was not booked until after he signed the written confession, the key assertion of appellant — that he was told that he could not call his wife until he signed the written confession — was not admitted. It is our conclusion that, under the procedure in effect in this state at the time of the trial, the trial judge properly admitted the confession and left to the jury the question of whether it had teen made voluntarily.
In appellant’s testimony at the trial there is some indication that during the period he was on the so-called “small book” he was denied permission not only to call his wife but, also, to call an attorney. Appellant makes no contention that the denial of counsel was significant, except as related to the question of the voluntariness of the confession. The question of voluntariness of the confession was properly submitted and passed upon by the jury under the procedure existing at the time. We, therefore, find it [724]*724unnecessary to consider the significance of absence of counsel during this period in any other context. In any event, absent a showing that, because of the absence of counsel during this period, appellant was “so prejudiced thereby as to infect his subsequent trial with an absence of ‘that fundamental fairness essential to the very concept of justice’ ” '(Crooker v. California (1958), 357 U. S. 433, 2 L. Ed. (2d) 1448, 78 S. Ct. 1287), it should be clear that the absence of counsel, by itself, does not constitute reversible error. State v. Johnson (1959), 53 Wn. (2d) 666, 335 P. (2d) 809.
Appellant is about twenty-five to thirty years of age. Although there is no statement in the record of his educational background, it is abundantly clear from his testimony at the trial that he is an articulate person and certainly one of average intelligence, to say the least. Except to those perhaps inclined to be apprehensive or unduly allergic to law enforcement officers and their use of effective law enforcement techniques, his three prior felony convictions should be indicative of one of the hard practical facts of life: namely, that the processes of the law were not new and strange to appellant Haynes. To put it bluntly, and with no intention of humor or whimsy, this is not the case of an innocent or bewildered lamb, unfairly disadvantaged by police state officials. Evaluating realistically the circumstances which we think are reasonably pertinent, we are convinced that (a) submission of the confession for the jury to determine its voluntariness and evidentiary weight, and (b) the absence or lack of legal counsel when the confession was made did not deprive this particular appellant of his liberty without due process of law.
Unquestionably, the judicial branch of government has an obligation to protect suspected or alleged criminal offenders against unreasonable denial by law enforcement officials of due process — fundamental principles of fair play. This, of course, is true whether untoward official action is merely over-zealous and perhaps due to inexperience, or is attributable, in common parlance, to “harness bull fever”; i.e., over exposure to occupational hazards and authoritarian human tendencies. On the other hand, the courts have a [725]*725responsibility to protect and secure the public against the vandalism and violence of the apparently ever present and perhaps increasingly threatening criminally inclined segment of our population.
Without citing cases, it may be noted that in fairly recent years significant due process criminal protection concepts have blossomed and developed in American jurisprudence. The concomitant is a loss of some authority, and perhaps effectiveness, on the part of law enforcement officials. From this, realistically, it follows that, in recognizing and applying criminal due process concepts, the problem as well as a function of the judiciary is to chart a reasonable course for the law between two social objectives. (These in some respects, which we will not attempt to delineate, are somewhat paradoxical.) They are (a) protection of the public against criminal acts and conduct of its members, and (b) protection of the criminally accused against over-zealous and unfair law enforcement activities. Either objective considered and emphasized without relation to the other can easily lead to one or the other of two undesirable extremes. The problem, at times, is quite perplexing, but not to the degree that reasonable, intelligent and workable judicial resolution is impossible.
With the foregoing considerations in mind, it is our best judgment that drawing the line as above indicated (supporting the validity of the trial court’s handling of the confession) affords reasonable protection not only to the criminal defendant herein but also to the members of the public of our state.
It has been urged that the recent case of Griffith v. Rhay (Sept. 12, 1960, 9th Circuit), 282 F. (2d) 711, militates against our disposition of the confession issue in the instant case. In Griffith the police interrogated the defendant shortly after he was given a narcotic drug to relieve him of pain. He had not been told of his right to counsel or of his right to remain silent. The Court of Appeals, considering the defendant’s youth (nineteen years), his limited formal education, and a history of emotional instability, along with the other circumstances, held that the confession obtained [726]*726at the interrogation was invalid. The circumstances of the instant case are manifestly different from those in Griffith v. Rhay, supra. See, in addition to Crooker v. California, supra, Cicenia v. LaGay (1958), 357 U. S. 504, 2 L. Ed. (2d) 1523, 78 S. Ct. 1297, in which the United States Supreme Court upheld the procurement of a confession obtained from a defendant who turned himself over to the police upon the advice of counsel, and whose repeated demands during interrogation to confer with counsel and the contemporaneous demands of the attorney to see his client were denied until after the confession was obtained.
Appellant has also assigned error to the trial court’s instructions Nos. 5 and 10. Instruction No. 5 informed the jury that the crime of robbery consists of a taking of personal property from the person of, or in the presence of, the owner against the owner’s will and by means of force or violence, or fear of immediate injury to his person. Appellant contends that the instruction should have included an additional element; i.e., a specific intent to deprive and defraud the owner of his property. The record discloses that the trial court declined to include this element in the instructions because it is an element of the crime of larceny, and where the charge is robbery an instruction on larceny is not required unless requested as an instruction on a lesser included offense. State v. Parsons (1906), 44 Wash. 299, 87 Pac. 349. As no request was made for such instruction on larceny — the appellant in fact insisting that he did not want such an instruction — we conclude that instruction No. 5, as given, was sufficient. State v. Druxman (1915), 88 Wash. 424, 153 Pac. 381.
Instruction No. 10 informed the jury that, where the actual existence of a particular intent is a necessary element to constitute a particular crime, the fact of the appellant’s intoxication may be considered in determining his capability to form the intent to commit the crime. Appellant objected to the following language contained in the instruction:
“If you find either accused was so drunk at the time he is alleged to have committed the crime charged as to render [727]*727him unconscious of his act, incapable of controlling his will, and forming and entertaining a felonious intent, his intoxication is a defense.” (Italics ours.)
Specifically, appellant urges that the instruction is inadequate for failing to define the “felonious intent” required in robbery as an intent to steal. This question was raised in State v. Byers (1925), 136 Wash. 620, 241 Pac. 9, and was disposed of adversely to appellant’s contention. We adhere to that decision.
For the reasons indicated hereinbefore, the judgment of the trial court should be affirmed. It is so ordered.
Mallery, Hill, Ott, and Hunter, JJ., concur.