1. Statements and admissions by a defendant subjected to in-custody interrogation who has not been instructed of his constitutional right to remain silent if he so desires and of his right to counsel, or who, having been so informed, does not clearly and affirmatively waive such rights, are not admissible against him to prove his guilt.

2. If on the trial of his case the defendant takes the witness stand and swears to a state of facts contrary to his prior statements, they may be given in evidence solely for purposes of impeachment, the burden being on the court to caution the jury that such evidence is to be considered only for the purpose of assessing the defendant's credibility and not to establish his guilt of the offense for which he is on trial; however, where the evidence is not offered solely for this purpose nor does the trial judge instruct the jury to consider it solely for purposes of impeachment, its admission is error.

SUBMITTED JUNE 1, 1971 — DECIDED JULY 16, 1971.

The defendant was indicted and convicted of burglary. The State presented evidence that a house from which tenants had moved out on October 21, 1970, had been found on November 3 to have been broken into. Two gas heaters were missing. One was found in the defendant's home, and there was testimony that it had been brought there by the defendant and a co-indictee. The defendant then took the stand and presented his sworn testimony that he did not burglarize the house, that on the morning of November 3 he was walking down the street and saw the heater with a pile of trash, including old chairs, a mattress and a one-armed sofa, on the lawn in front of the house, that he assumed the furnishings had been discarded, and he brought the heater home for his mother to use. The State recalled to the stand a city detective who had arrested the defendant, who then testified that the defendant had voluntarily stated he would show them where he had found the heater; that he had led them to the house which had been burglarized and indicated a wall in the front room inside the house, at a place where there was in fact a heater connection.

On cross examination the detective then stated that this conversation and trip took place the day after the defendant had been arrested for investigation in connection with a theft of pecans; that on his arrest he had been informed of his right to counsel and to remain silent under interrogation but that this was in connection with the pecan larceny case; that the warning had been originally read to him but not repeated in connection with the case for which he was on trial, and that the defendant's statement about finding the heater had been made during an interrogation about this and another offense and in reply to a statement by the officer, after the defendant said he did not want to talk about the other offense: "We are going to charge you with burglary, I want you to know we're going to charge you with that." He further stated that the defendant signed no waiver, that "after I advised him of his rights on the pecans he refused to talk and I didn't get him to sign one," and that he was under investigation at the time in connection with both offenses.

A motion to rule out all testimony by the detective as to the defendant's statements to him concerning the heater was overruled, and the sole enumeration of error is directed to this issue.

PANNELL, Judge.

1. The defendant was being subjected to an in-custody interrogation on the day following his arrest. His own testimony was that he asked for counsel, but did not obtain a lawyer until several days later. The State offered no evidence on this point, but the State's witness did testify that the statement was made after the defendant indicated his desire to remain silent. Either he was not warned on the burglary charge or, if the warning given went to both offenses, then so did his indication that he wished to remain silent. In any event, the burden is on the State, not on the defendant, to show that the latter's constitutional rights are preserved. "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 retain appointed counsel." Miranda v. Arizona, 384 U.S. 436, 475 ( 86 SC 1602, 16 L.Ed.2d 694, 10 ALR3d 974). However, as recently held in Harris v. New York, 401 U.S. 222, 226 ( 91 SC, 28 L.Ed.2d 1), "The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. . . Petitioner's credibility was appropriately impeached by use of his earlier conflicting statements."

2. While, after the defendant testified that he had found the heater abandoned in a trash pile, it was permissible to produce evidence of a contradictory statement that he took it from inside the house, not to prove the fact but to impeach his credibility, there is nothing in the record or the proceedings which indicate that the evidence objected to was introduced for the sole purpose of impeaching the defendant, so no question of its admissibility for that purpose is involved. It is our opinion that where inadmissible evidence as to a confession is offered and admitted, its admission constitutes reversible error, unless the jury is expressly instructed that the evidence is admitted for the purpose of impeachment only, whether or not a request to so charge be made, and whether or not any exceptions are made to the charge as given. Harris v. New York, 401 U.S. 222, supra, is authority only that such evidence is admissible for the purpose of impeachment, when and if the trial court also instructs the jury as to the purpose of its admission. Until this is done, the admission of such evidence is reversible error. That the evidence was offered in rebuttal does not mean it was offered, not to prove the facts, but solely to impeach.

Judgment Reversed. Bell, C. J., and Deen, J., concur.