¶1Concurring in Result
¶2I concur in the opinion of the majority in its resolution of the issues of the alleged misconduct of the trial judge and the alleged insufficiency of the evidence. I must depart from the majority, however, in resolving the issue of whether a certain statement made by the appellant would be deemed inadmissible under the ruling of Miranda v. Arizona (1966), 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694.
¶3The appellant was allegedly seen to have hidden some store merchandise upon her person. A witness, Willie Wells, a store employee, testified that he had personally observed the appellant appear to be shoplifting some merchandise and that he immediately contacted Officer Beaver, the arresting officer. Officer Beaver followed the appellant outside the store where he stopped her and asked her whether she “had anything in her possession that she had failed to pay for at the counter”. This question posed by Officer Beaver to the appellant was elicited on the direct examination of Officer Beaver by the State’s prosecution. The appellant’s incriminating response *699to this question was brought forth only upon the defendant’s cross-examination of the witness Officer Beaver during the following colloquy:
“Q. Now then you said then that you asked her some questions, what did you ask her?
A. I asked her if she had anything she had failed to pay for, as she came through the store . . . through the stand, and she said ‘Yes, I have this blouse.’ ”
¶4Appellant contends that her Fifth Amendment rights were violated in that evidence was introduced which was obtained prior to the warning required by Miranda v. Arizona, supra.The record shows that Officer Beaver did give the required warnings after placing the appellant under arrest subsequent to the conversation described above.
¶5The question then is whether the statement made prior to the warnings was inadmissible as being in violation of the holding of Miranda. The majority holds that Mirandais without application in this instance as the officer’s question was within the ambit of “general on-the-scene questioning” which is not affected by the Mirandaholding. The majority further states that the Mirandawarning was not necessary prior to the time when the store manager indicated he intended to prosecute. I cannot agree. The decision of a prosecuting witness to “prosecute” is neither a necessary nor a sufficient element in the actual prosecution of an accused. Nor can any such decision, regardless of by whom it is made, be the touchstone in determining when the Fifth Amendment rights of the accused attach themselves.
¶6In the case at bar, whether the statement elicited from the appellant was inadmissible is decided by determining whether the statement was made during custodial interrogation.
¶7The language of the Supreme Court in Mirandadeserves quotation:
“The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of *700procedure safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. (This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused.) ”
¶8While the determination of when custodial interrogation begins is not without difficulty, I believe the facts in the case at bar do not lend themselves to a conclusion that the officer’s question to the appellant falls within the meaning of general on-the-scene questioning and, therefore, outside the scope of Miranda.
¶9As a result of information received from a store employee, Officer Beaver had reason to believe that the appellant had shoplifted certain goods from the store. He followed her outside the store, stopped her and asked her whether she had any articles on her which she had failed to pay for before she left the store. At that time Officer Beaver’s attention was focused upon the appellant not as a general citizen who.might assist in the fact finding process surrounding an unsolved crime but rather as a person who was herself suspected of just having committed a felony. Certainly, a question posed to a suspect which invites an incriminating answer cannot be termed general on-the-scene questioning. Any such question posed to suspects by the police must be preceded by the warnings and waiver required by Miranda.
¶10Turning to the issue of whether the statement by the appellant that “Yes, I have this blouse” was erroneously admitted, I must conclude that it was not. As stated above this statement was not brought out on direct examination of Officer Beaver. Upon cross-examination the appellant’s counsel asked Officer Beaver only what question he had asked the appellant. Officer Beaver replied with both the question and the appellant’s answer. A motion to strike Officer Beaver’s answer as not being responsive to the question may have been appropriate but it was not forthcoming. An earlier motion to sup*701press all further evidence of Witness Beaver, a later motion for finding of Not Guilty and discharge were properly overruled. In absence of a move to strike the answer of the witness, I believe it was not erroneously admitted and, therefore, concur in result reached by the majority.
¶11Note.—Reported in 266 N. E. 2d 612.