¶1Dissenting Opinion
¶2I dissent in this case. The categorical imperative of Miranda v. Arizona (1966), 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, requiring a criminal defendant about to be interrogated by the police to be advised of his right to have pauper counsel present at the interrogation in the event he has no means to employ one, was not complied with in this case. The trial court, therefore, committed reversible error when he overruled the objection of defense counsel to the admission of the statements of the appellant during that interrogation.
¶3Prior to the interrogation the appellant was told he had a right to call an attorney, to have an attorney present if he wished, and that the court would appoint him a lawyer if he was unable to hire one. He was also told he had a right to have a lawyer with him during the interrogation even if he could not afford to hire one. However, he was then advised that “We have no way of giving you a lawyer but one will be appointed for you, if and when you go to court and the court finds that you are a pauper.”
¶4*251There is, I agree, an inference that could be drawn from this advice the appellant could have pauper counsel with him during his interrogation. This inference could flow from the advice that he could somehow postpone the interrogation until after a court hearing at which his indigency would be determined and counsel appointed. The possibility that the appellant, a non-lawyer, might have been able to make this inference from the advice given him, does not meet the mandatory requirements of the Mirandacase. As Chief Justice Warren wisely said in the Mirandacase:
“While authorities are not required to relieve the accused of his poverty, they have the obligation not to take advantage of indigence in the administration of justice. Denial of counsel to the indigent at the time of interrogation while allowing an attorney to those who can afford one would be no more supportable by reason or logic than the similar situation at trial and on appeal struck down in Gideon v. Wainwright. . . .
“In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent— the person most often subjected to interrogation — the knowledge that he too has a right to have counsel present. As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it.” (Emphasis added.) 384 U. S. at 472, 473.
¶5The Mirandacase requires that the interrogating officials make a clear and direct statement to the defendant about to be interrogated that he has a right to have pauper counsel present at his interrogation in the event he has no means to employ one. The interrogating officials in this case made no such direct statement.
¶7I am unable to agree with the conclusions reached in the majority opinion and dissent thereto.
¶8My colleague, Judge DeBruler, has written a vigorous dissent on the lack of adequate warning under the Miranda rule in this .case, in which dissent I concur. For that reason I deem it unnecessary, in this dissent, to further discuss that question.
¶9I take issue with the following loose wording of the majority opinion reading as follows: “Appellant has failed to overcome the prima facie admissibility of the confession or satisfying the burden of showing its incompetency.” My colleagues are reverting to the rules of civil procedure which permit the prima facie rule and where the burden of proof can shift from plaintiff to defendant. In criminal law and practice all presumptions, intendments and inferences are against the State in favor of the defendant, and the burden of proof always rests on the shoulders of the State and never shifts to the defendant. Fehlman v. State (1928), 199 Ind. 746, 161 N. E. 8; Welty v. State (1913), 180 Ind. 411, 100 N. E. 73.
¶10I note with some interest and complete disagreement that the majority opinion relies to a large degree on the case of State of New Jersey v. Sylvester Johnson, et al. (1960), 31 N. J. 489, 158 A. 2d 11, as appears at pages 13 and 14 of the majority opinion, for the rationale enunciated in the remainder of that opinion. As the case and the majority approval appears in their opinion, it is in the interest of brevity omitted here. Indiana has in our own case law, ample precedent, buttressed by careful analytical thinking, that makes resort to out of state decisions unnecessary. Simmons v. State (1955), 234 Ind. 489, 129 N. E. 2d 121; Dennis v. State (1952), 230 Ind. 210, 102 N. E. 2d 650; Parker v. State (1949), 228 Ind. 1, 88 N. E. 2d 556; Hawkins v. State (1941), 219 Ind. 116, 37 N. E. 2d 79; Gaines v. State (1921), 191 Ind. 262, 132 N. E. 580; Messel v. State (1911), 176 Ind. 214, 95 *253N. E. 565; Griffiths v. State (1904), 163 Ind. 555, 72 N. E. 563; Wharton’s Criminal Law, Vol. 1, §359.
¶11The evidence in the case at bar, produced by the State, and uncontradicted in any manner by any witness is to the effect that the money in the tavern had not been disturbed in any manner, nor was there any evidence other than appellant’s extra-judicial confession that there was ever any intent to rob or attempt to rob the decedent or his place of business. Police Officer Robert Johnson testified that he counted the money and turned it over to decedent’s son-in-law that same evening. The total amount of money in the cash register was $239.15, a plastic bag in the cabinet drawer left side of the cash register contained a total of $300.00, money in a cigar box in the same drawer contained a total of $38.00, the safe contained a total of $288.20, a cigar box on the right side of the cash register marked Tax Money contained a total of $20.67, there were some plastic tubes on the back bar containing a total of $21.25. This witness then testified he counted at the tavern a total of $605.27 in cash and $620.53 in checks for a grand total of $1,233.80 which he turned over to decedent’s son-in-law, Warren Antoine.
¶12It thus appears the facts in this case are on all fours with and supported by Hayden v. State (1964), 245 Ind. 591, 199 N. E. 2d 102.
¶13The statement in the opinion relative to dicta and confusion and attempting by the majority opinion herein to overrule all statements or cases contrary to the majority opinion herein, is in my opinion bad law and one that this Court will regret. It seems to me that we are here substituting expediency and hysteria for deliberation and judgment.
¶14There is a rule of law to the effect that what the State charges in an indictment or affidavit must be proven, even if it was unnecessary to make all the charges in the first instance. In this case the State having elected to charge appellant with the felony murder while attempting robbery must *254now, in order to legally convict the defendant- appellant, prove both the intent and attempt as well as the homicide beyond a reasonable doubt. Having elected to bear that burden they must discharge it. Abraham v. State (1950), 228 Ind. 179, 91 N. E. 2d 858; State ex rel. Cutsinger v. Spencer (1941), 219 Ind. 148, 41 N. E. 2d 601.
¶15Finally, I have always been of the opinion that a violent homicide, without justification, “was criminal in nature.”
¶16The judgment of the trial court should be reversed and remanded with instructions to grant appellant’s motion for a new trial.
¶17Note. — Reported in 252 N. E. 2d 572.