The defendant, Ricardo Limón, was charged with having committed the crime of unlawfully driving away a motor vehicle under CL 1948, §750.413 (Stat Ann 1954 Rev § 28.645).
The elements of the crime are: (1) possession must be taken, (2) there must be driving or taking away, (3) done willfully, and (4) without authority.
The issue before the Court is whether there was sufficient evidence to establish the corpus delicti so as" to allow the admission of the confession of the defendant into evidence.
*443 The facts of this case are presented in the text of the opinion below.
The confession of the accused alone is insufficient to sustain a conviction for the crime with which he is charged.
People
v.
Lambert
(1858),
Evidence must first be presented to establish the
corpus delicti
before the admissions of the accused can be put into evidenсe.
People
v.
Swetland
(1889),
Since the admissions of the accused cannot be used until the corpus delicti has been established, it is necessary to determine if the corroborative evidence' is sufficiеnt to establish the crime. The testimony justified a finding of the following facts:
(1) On December 29, 1964, at approximately 8:30 in the morning, Douglas Eindle left a 1963 4-door station wagon with keys in a pаrking lot located at Brush and Gratiot.
(2) When he returned to the lot after attending a party on December 30, 1964, at approximately 2:30 a.m., his car was gone.
(3) The lot was closed when Mr. Eindle returned.
(4) There was no attendant on the lot. ,
(5) He reported the car stolen.
(6) On December 30, 1964, at approximately 3 a.m., police officers were in the vicinity of the downtown TMCA after receiving a call that a man was going through cars.
(7) They observed the dеfendant, Eicardo Limón, standing between two parked vehicles in a parking lot located at Witherell and Columbia; he was the only man in the lot,
*444 (8) The motor of one vehicle was running; the left door was open; the keys were in the ignition.
(9) The defendant was on the right side of the car; he claimed to he there for the purpose of urinating.
(10) He was taken hack to the police station after the police discovered that the car with the running engine had been reported stolen.
These facts аnd circumstances sufficiently established the existence of the crime with which defendant was charged. Although the defendant was not seen driving the car, circumstantial evidence may be used to establish the
corpus delicti. People
v.
Hawksley
(1890),
In
Peterson
v.
Oceana Circuit Judge
(1928),
The situation in the instant case is similar to one existing in People v. Mindeman, supra, where the defendant was seen near a' safe and a few days later diamonds were found to be missing. The removal of the jewels without the authority of the owner was held to warrant the inference of larceny.
Thus, the removal of the car from where it was parked by the owner, without his permission, warranted the inference of larceny.
Once the existence of the crime was established, the guilt of the accused сould be based on his own otherwise uncorroborated confession.
Smith
v.
United States
(1954),
Defendant’s second ground on appeal is that the confession was erroneously admittеd into evidence because he was not represented by counsel at the *445 interrogation during which this confession was signed, although the defendant had requested samе.
Although this question is raised for the first time on appeal, where there is an alleged denial of a constitutional right the fact that it is first raised on appeal does nоt preclude its consideration by the appellate court.
This philosophy was reaffirmed recently in the Federal courts by Stanfield v. United States (CA 10, 1965), 350 F2d 518, 519:
“ ‘In criminal cases involving the life or liberty of the accused, the appellate courts of the United States may notice and correct grave errors which seriously affect substantial rights of the aсcused, although not challenged by objection or motion in the trial court.’ ”
In addition, it is noteworthy that the testimony clearly established the basis of the contention that defendant was denied counsel during the interrogation when he signed the confession. Furthermore, the admission of this confession was strenuously objected to by his counsel at trial, although the thrust of the objection was directed toward its inadmissibility on grounds other than absence of counsel.
It is therefore incumbent upon this Court to determine if the defеndant was denied a constitutional right.
On June 13, 1966, the United States Supreme Court handed down its landmark decision of
Miranda
v.
Arizona
(1966),
“If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the Government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or аppointed counsel. Escobedo v. Illinois,378 US 478 , 490, n. 14, (84 S Ct 1758 , 1764, 12 L ed 2d 977). This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst,304 US 458 (58 S Ct 1019 , 82 L ed 1461 [1938]), and we reassert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.” (p 475).
The absence of
corroborated evidence
of warnings given during the incommunicado interrogation in the instant case would, alone, be sufficient for reversal under
Miranda, supra.
However, the Supreme Court did not give
Miranda
retroactive effect. See
Johnson
v.
New Jersey
(1966),
There was disputed testimony in the record as to whether the defendant sought and was denied counsel. Defendant testified that he had made a request for counsel and the officer testified that he had not. The trial court, sitting as the trier of fact, decided this issue against the defendant. Miranda, supra, states in unambiguous language that a request is no longer to be considered a prerequisite.
*447 “An individual need not make a preinterrogation request fоr a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given.” (p470)
Thus in the future a determinаtion that no request had been made will not be fatal to a claim of a denial of counsel during in-custody interrogation.
Although the holding in
Escobedo
v.
Illinois
(1964),
‘Where * * * the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult %vith his laimger, and the police have not effectively warned him of his absolute constitutional right to remain silent, thе accused has been denied ‘the assistance of counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright,372 US 335 , 342 (83 S Ct 792 , 9 L ed 2d 799, 804, 93 ALR2d 733), and that no statement elicited by the police during the interrogation may be used against him at a criminal trial,” (Emphasis supplied.)
*448 Escobedo, supra, does not apply since its language seems to necessitate a request and a denial of counsel to compel a reversal where a statement is introduced which was elicited during inсommunicado, in-custody interrogation. Miranda, supra, does not apply because this trial preceded its effective date. However, we take this occasion to make it clear to the bar that this Court will give Miranda v. Arizona, supra, its full effect for cases arising after June 13, 1966.
The following events took place on the morning of the arrest: The arrest was made at 8 a.m.; the defendant was questioned аt 8:15 a.m.; the statement was made and signed between 8:15 a.m. and 8:45 a.m.; defendant was assigned counsel at 9 a.m. by the court.
Defendant’s statement to the police officers appears to have been made voluntarily and after he had been informed of his constitutional rights.
Affirmed.