¶1I dissent.
¶2I am indebted to Chief Judge Desmond’s dissent in People v. McQueen, 18 N. Y.2d 337, 274 N. Y. S.2d 886, 898, 221 N.E.2d 550, 558 (cited by the majority) for the following: “Unvarying lias been our fealty to the rule of the Schooner Peggy case (1 Cranch [5 U. S.] 103, 110, 2 L. Ed. 49 [1801]) where Chief Justice Marshall wrote: ‘It is in the general true that the province of an appellate court is only to inquire whether a judgment when rendered was erroneous or not. But if, subsequent to the judgment, and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. … In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside’.”
¶3We should follow the above rule. As Chief Judge Desmond points out, the plain justice of the matter requires that current law be applied to current appellate problems. This does not necessitate application of the rule to cases already disposed of by this court oil direct appeal. Hence the point urged by the State in its application for rehearing is effectively answered.
¶4However, this ease does not necessitate using the Miranda rules. All we have to do here is follow the pre-Miranda dictates of the Supreme Court of the United States as fairly applied to the facts in this case to conclude that federal constitutional *158guarantees have been violated and. a new trial is necessary.
¶5It would seem that on Us fads this case has less to commend it by way of warning than any of the cases heretofore cited as Iowa precedent. It is the point where this court can and should depart from its historic insistence on coercion and duress as the only criteria for voluntary statements and recognize that the federal constitutional requirements are to be enforced by this court whether we like them or not.
¶6The majority states, “The statements of defendant as reported were voluntary and were admissible at the time this case was tried.” and cites six recent Iowa cases in support of that case. All of those cases, except State v. Fox were noted and discussed in the former opinion reported in 145 N.W.2d 608. Additional space need not now be used to reiterate what has already been printed (though withdrawn as a majority opinion).
¶7As to State v. Fox, supra, the case is simply not in point. The statements, admissibility of which was challenged by Fox, occurred long after he had an attorney, had talked to his attorney and had been advised by his attorney of his constitutional rights. Factually the cases are so palpably dissimilar that it was thought that the dissimilarities need not be underlined.
¶8This, it now api>ears, was a mistake. For Fox is one of the first cases in which this court obliquely announced that it would not follow the plain import of the United States Supreme Court’s holdings in Escobedo v. State of Illinois, 378 U. S. 478, 84 S. Ct. 1758, 12 L. Ed.2d 977; Carnley v. Cochran, 369 U. S. 506, 82 S. Ct. 884, 8 L. Ed.2d 70; and Malloy v. Hogan, 378 U. S. 1, 84 S. Ct. 1489, 12 L. Ed.2d 653, until required to do so by more stringent language. The language was supplied in Miranda.
¶9This court avoided the clear import of those federal cases in the six state cases cited by the majority. Those cases along with many others from other jurisdictions forced the detail in Miranda.
¶10But in each of our State eases there was (arguably) enough warning so that the majority had some evidence upon which it could build a rationale; “a peg upon which it could hang its hat.” Not so here. The record does not support the statement in Division IV that “It is undisputed in the record that de*159fendant was repeatedly advised that she ‘didn’t have to say anything.’ ” The most that can be said for this record is that two police officers testified that defendants were told that they “didn’t have to say anything.” But the only fair conclusion from all the evidence was that this statement was made by the officers only once, although both officers testified as to its having been made. Even under our prior holdings and most certainly under any fair reading of the pre-Miranda U. S. Supreme Court decisions, we should conclude that there was no effective warning given here. The distinction between this case and our prior cases is that some semblance of warning was given in the prior eases. Here we must content ourselves with recognizing the bland statement she “didn’t have to say anything” as an effective warning.
¶11The majority states that “The case before us is not factually comparable to, controlled by or violative of the principles announced in Escobedo … This sweeping statement is not accurate. The case is controlled by Escobedo if the constitutional mandates of Escobedo have been violated. It is comparable to Escobedo in that in both cases defendant was questioned by police “without informing him of his absolute right to remain silent in the face of this accusation.” It is violative of the principles of Escobedo which (as noted in the Escobedo dissent), “At the very least … holds that once the accused becomes a suspect and, presumably, is arrested, any admission made to the police thereafter is inadmissible in evidence unless the accused has waived his right to counsel.” That principle is clearly present in the ease as recognized by Mr. Justice White. That principle is violated unless we hold (1) that short statement once given “You do not have to talk to us.” is a consitutional warning on which waiver can be bottomed or (2) that failure to affirmatively request a lawyer in and of itself constitutes a waiver. This is the basis for the conclusion that this ease must be reversed unless we are ready to presume a waiver of constitutional rights from a silent record. By doing that here, we violate the plain mandate of Carnley v. Cochran, supra.
¶12Finally, this case should be reversed because the defendant’s constitutional rights have been violated. Independent of the *160effect of our attitude, which is forcing the Federal Government to make us respect federal constitutional rights, orderly and just procedure demands that convictions be obtained within the framework of the United States Constitution as well as the Iowa Constitution. I would reverse and remand for new trial.
¶13I am authorized to say that Justices Mason and Rawlings concur in this dissent.