¶1Concurring
¶2The standards set forth in U. S. v. Wade (1967), 388 U. S. 213, 18 L. Ed. 2d 1149, 87 S. Ct. 1926, which grant to criminal defendants the right to assistance of a law*486yer at all critical pre-trial stages, does not apply to pre-trial identifications occurring prior to June 12, 1967. Stovall v. Denno (1967), 388 U. S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967. The confrontation between appellant and the victim Noe at Methodist Hospital occurred on November 15, 1966, and, therefore, the Wade rule is inapplicable to this case. Lewis v. State (1969), 252 Ind. 454, 250 N. E. 2d 358. If the confrontation in the case on appeal had occurred after the effective day of the Wade rule it would, in my judgment, definitely apply here. Prior to the effective date of the Wade rule, the rule of Stovall v. Denno, supra,would apply here, however, appellant’s counsel does not urge its application. See my concurring State (1969), 252 Ind. 454, 250 N. E. 2d 358. If the confronta(1969), 253 Ind. 254, 253 N. E. 2d 226.
¶3I do not agree with the exception to the Wade rule, adopted by the majority in Lewisand McPhearson and further adhered to and defined in the majority opinion today, because it is based on the fallacious assumption that innocent persons, suspected of having committed criminal offenses, will be benefited by this exception which denies to a suspect in custody the right to have a lawyer present at a pre-trial confrontation which takes place shortly after the offense has occurred. Assume a man is arrested for an offense which he is charged. Is the innocent man not better off if the police are required to wait until the man can hire a lawyer to accompany him to this identification scene or in the alternative, are required to obtain a voluntary waiver from the suspect of his right to have his lawyer present? Even assuming that the alleged victim’s memory of his assailant’s appearance may be fresher, and that a delay in the identification might result in the innocent suspect over-nighting in jail, is this man’s ultimate acquittal of the charge not more likely to occur if he has the right to counsel present? An innocent man in custody desiring to have an immediate confrontation with his supposed victim without counsel, can get one by waiving the right to counsel.
¶4Since the Wade rule is inapplicable to this case and I fully *487concur in the disposition by the majority of all other issues I vote to affirm the conviction.
¶5Jackson, J., .concurs.
¶6Note. — Reported in 255 N. E. 2d 219.