COBEY, J.

This is an appeal, following a nonjury trial, from a judgment of conviction of burglary of the second degree in which probation was granted and from an order denying a new trial. Such order is not appealable as such, but will be reviewed herein. (Pen. Code, § 1237, subd. 1.)

The grounds for appeal are essentially that (1) the evidence of appellant's concomitant intent to commit larceny or any felony was insubstantial; (2) his extrajudicial, highly incriminating statement to the police was improperly admitted in evidence to his prejudice. We reverse solely upon the second stated ground.

I. THE FACTS

On May 25, 1966, at 3:20 a.m., Mrs. Rosalee Frances McLean was awakened by an intruder in her bedroom in the apartment she shared with her husband in Long Beach. The intruder was appellant, Roy Edric Matthews, a career Navy enlisted man. Mrs. McLean screamed, appellant grabbed her by the throat but she managed to rise up in bed and start screaming for her husband. Appellant released his hold and fled through the well-lighted living room with Mrs. McLean in pursuit still screaming for her husband. Appellant ran into the kitchen from whence he escaped through a window above a sink. This window was the only means of external access to the apartment aside from the front door which had been chain-locked. Nothing was taken or missing from the apartment.

At approximately 4 a.m. that same morning two Long Beach police officers, searching for a prowler, observed appellant lying under a parked car in an alley a half block away from Mrs. McLean's apartment. One of them shined his flashlight directly into appellant's closed eyes and the other told him two or three times to get up. When appellant failed to do so but flinched his eyes, the two policemen, with the help of others who had joined them, lifted appellant out from under the car and stood him up in the middle of the adjoining backyard. At 4:10 a.m. another police officer advised appellant of his constitutional rights as required by People v. Dorado, 62 Cal.2d 338, 353-354 [ 42 Cal.Rptr. 169, 398 P.2d 361], and placed him under arrest for burglary. Appellant was then apparently placed in jail.

During the next 30 hours or so, appellant was taken once and possibly twice from the holding tank to a Long Beach police interrogation room to be questioned. The sole reported interrogation during this interval of time was conducted by Inspector Bennett in the presence of Sergeant Johnson. It lasted approximately 10 minutes. Appellant was advised of his constitutional rights along the lines of the requirements of Miranda v. Arizona, 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], by Inspector Bennett who also had appellant repeat that advice to make sure he understood it. Bennett then asked appellant whether he understood these rights, as Bennett had told him of them previously. Appellant replied that Bennett had not. Bennett became "rather hot about it" and commented "You have to get up early in the morning to fool me" or something like that. Appellant said he had been "brutalized." The two police officers told appellant to take off his clothing from the waist up. They inspected the exposed half of his body, particularly his back, about which they questioned him. Bennett then asked appellant, in a way which appellant regarded as insinuating his guilt, what had happened at the McLean apartment. Appellant would not talk and was therefore returned to the holding tank.

About 11 a.m. the next day, appellant was taken by the aforementioned Sergeant Johnson from the holding facility in the courthouse to the courtroom of Municipal Judge Lilley for arraignment. While waiting in the jury box following his arraignment appellant motioned Sergeant Johnson over and said, "I would like to clear things up," or something like that. Johnson told appellant to wait until court was over.

Appellant was arraigned before Judge Lilley in the presence and hearing of, among others, Sergeant Johnson. He was without counsel and the judge appointed the public defender to represent him. The judge also advised appellant of certain of his constitutional rights relating to his forthcoming trial.

Immediately after the arraignment and without any consultation with his just-appointed counsel, appellant was taken by Sergeant Johnson to the police station across the street. There he gave Sergeant Johnson and a police secretary a five-page statement, in question and answer form, which subsequently was introduced into evidence over objection as People's Exhibit No. 3. After this statement had been typed up it was taken back to appellant in the holding tank to read and sign, page by page, which he did in the presence of Sergeant Johnson and a Navy chief petty officer who was the liaison between the Navy and the Long Beach police and who was requested by Sergeant Johnson to witness appellant's signatures.

In the statement, appellant admitted that he had entered the McLean apartment through the torn screen of the kitchen window after having drunk a pint of whiskey and some beer earlier that night; that he did not know why he did so, that he continued through the house into a bedroom where a person awakened whom he attempted to quiet unsuccessfully, that he then fled but returned to the vicinity of the apartment looking for a pair of glasses which he had lost, that he saw the police and then dozed off and was subsequently awakened by them. The deputy public defender objected to the admission of this statement on the ground that the People had not shown an effective waiver by appellant of his right to counsel before he made the statement.

II. THE QUESTION OF APPELLANT'S FELONIOUS INTENT.

[1] Turning to appellant's first contention on appeal, that the evidence of his felonious intent in entering the McLean apartment is insubstantial, we find it to be without merit. Appellant claims that he was so intoxicated that he did not know what he was doing when he climbed into the kitchen window. It is true that appellant had consumed a pint of whiskey and some beer during the evening hours before he was discovered in Mrs. McLean's bedroom and that a breathalyzer test by the police shortly after his arrest showed that the alcohol content of his blood was then .10. Moreover, appellant testified that he was intoxicated when he entered the apartment and did so without intent to commit larceny or rape. But one of the arresting officers testified that in his opinion, appellant was not drunk at the time of his arrest. This occurred within an hour of his entry into the apartment. Furthermore the trier of fact could properly infer from the time and the apparent manner of appellant's entry into the apartment that he possessed a felonious intent at the time of such entry.

III. THE NONADMISSIBILITY OF APPELLANT'S STATEMENT.

[2] Appellant's highly incriminating statement to the police was taken by means of an interrogation immediately following his arraignment and the appointment of the public defender to represent him. The taking of this statement was occasioned by appellant's expressed desire "to clear things up" in the mistaken belief that he was not guilty of the crime with which he had just been formally charged. Under these circumstances, the question presented is whether appellant's statement was a voluntary self-incriminating statement beyond the protection of the constitutional privilege against compulsory self-incrimination and the safeguards of Miranda v. Arizona, supra, 384 U.S. 436.

To answer this question we must determine whether appellant's statement was the product of a "custodial interrogation" as that term is defined in Miranda. This is so because, while Miranda recognizes that "voluntary statements" are admissible without its safeguards, no statement may be deemed "voluntary" if it is the product of a custodial interrogation carried on in the absence of those safeguards. Thus we turn to Miranda's definition of "custodial interrogation" and to its applicability to this case.

The definition is simple enough. At page 444 [16 L.Ed.2d at p. 706] the Court states: "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." (Italics added.) The difficulty in this case is that the suspect volunteered "to clear things up." All of the elements of a custodial interrogation were present unless it be said that appellant, rather than the police, initiated the questioning. Thus the critical question becomes whether the word "initiated" was used in the Miranda definition in the sense of "occasioned" or "begun."

We think "initiated" was used by the Supreme Court in its primary meaning of "begun" and that there is no escape from the fact that Sergeant Johnson began the questioning in this case. Appellant had stated that he wanted "to clear things up" but it was Sergeant Johnson who independently decided to take appellant back to the police station and to question him in the presence of a police secretary. What ensued was a custodial interrogation under Miranda. [3] At first blush it may appear that to apply Miranda, as we do, to a statement essentially offered by a prisoner but which is elicited in question and answer form by a police officer is to place form over substance. If the police officer merely listens and records, the statement is "voluntary"; if he questions the prisoner, the statement is part of a "custodial interrogation" and will be "involuntary" if Miranda's safeguards are not completely followed. But where the questioning is of the type involved here this difference is more than one of mere form; it goes to the root of the policy behind Miranda. If, without questioning, a prisoner volunteers a statement and the police simply listen and record (or ask a neutral question such as "What do you want to say?") the statement is wholly voluntary. Anything the prisoner then says is plainly only that which he wants to say; his statement is entirely voluntary both in its origin and in its making. The police role is purely passive and there is no exercise by the police of the compulsion and pressure which Miranda found to be inherent in all custodial interrogation.

On the other hand, if the police choose to question the prisoner who has offered to make a statement they may well elicit more incriminating matter than the suspect would have volunteered. Their role has ceased to be passive and the statement produced by their interrogation is not likely to be wholly the prisoner's.

Accordingly, we hold that appellant's statement by reason of the manner in which the police obtained it was not an entirely voluntary statement nor a volunteered one within the meaning of Miranda. [4] Therefore it was necessary for the People in this case to meet a heavy burden of proof to establish the admissibility of this statement by showing that appellant, before making this statement, knowingly and intelligently waived his privilege against compulsory self-incrimination and his right to the presence of his court-appointed counsel. ( Miranda v. Arizona, supra, 384 U.S. 436, 475 [16 L.Ed.2d 694, 724].) This burden involved essentially proof that the police gave appellant full and timely warnings with respect to these two constitutional rights and that he then made an affirmative waiver of such rights before he made the statement under consideration. ( 384 U.S. 436, 475 [16 L.Ed.2d 694, 724].)

The record here leaves much to be desired in these respects. The trial court was under the erroneous impression that the Miranda requirements did not apply to appellant's interrogation because such interrogation occurred before the date of that decision and because appellant had received at least three different warnings as to his constitutional rights prior to the making of his statement. Consequently it unduly limited defense counsel's inquiry into this area.

The warnings which were given appellant prior to his making the statement appear to have been deficient in at least two respects. Each of the warnings, with the possible exception of the second one, was inadequate in content. The first warning, which was given appellant on the occasion of his arrest, was, regardless of his condition at the time, plainly insufficient in its coverage. (See Miranda v. Arizona, supra, 384 U.S. 436, 444, 479 [16 L.Ed.2d 694, 706, 726].) The third and last warning, given at the time of appellant's arraignment and upon which the trial judge particularly relied, was not directed toward custodial interrogation at all but was instead quite properly directed toward appellant's constitutional rights at the trial.

The second warning, given by Inspector Bennett the day before appellant made his statement, was generally sufficient in coverage, but failed to make clear that appellant was entitled to the presence of his counsel before and during any custodial interrogation. (See 384 U.S. 436, 444, 471, 473, 479 [16 L.Ed.2d 694, 706, 721, 722, 726].) In any event, regardless of the sufficiency of this particular warning, the police failed to give appellant any warnings whatsoever just prior to taking his statement the next day. [5] A contemporaneous warning is required under Miranda at the outset of each interrogation. (See 384 U.S. 436, 469 [16 L.Ed.2d 694, 720].)

Moreover, prior to making his statement, appellant never affirmatively waived his constitutional rights to remain silent and to be represented by counsel. It is true that he repeated Inspector Bennett's warnings the previous day but he said then that he did not understand them. [6] Under Miranda, silence in the face of the warnings, even if then followed by the making of a statement, is not enough to establish a knowing and intelligent waiver of these rights by the maker of the statement. An affirmative waiver is required. (See 384 U.S. 436, 475 [16 L.Ed.2d 694, 724].)

Finally we come to the failure of the police to afford appellant a reasonable opportunity to consult with his court-appointed counsel, the public defender, before interrogating him when they knew of such appointment. In Miranda it was pointed out that the action of the police in Escobedo v. Illinois, 378 U.S. 478, 480-482 [12 L.Ed.2d 977, 980-981, 84 S.Ct. 1758], in preventing Escobedo's attorney from consulting with him before he made his statement, in and of itself constituted a violation of Escobedo's Sixth Amendment right to the assistance of counsel and excluded any statement obtained in its wake. ( 384 U.S. 436, 465 fn. 35 [16 L.Ed.2d 694, 718].) Here, by whisking appellant across the street to the police station for interrogation immediately following the appointment of the public defender as his counsel, the police prevented the public defender from consulting with appellant before he made his statement. But in this case, unlike Escobedo, neither appellant nor his counsel attempted in any way to contact each other before appellant made his statement. In view of these circumstances and the other already discussed failures by the police and the trial court to comply with the requirements of Miranda, we need not decide whether the conduct of the police in this respect constituted an independent violation of appellant's Sixth Amendment right to counsel.

[7] Having found that the admission of appellant's statement in evidence constituted federal constitutional error, we must now decide whether we can declare our belief beyond a reasonable doubt that this error did not contribute to the trial court's finding of guilt. ( Chapman v. California, 386 U.S. 18, 22-24 [17 L.Ed.2d 705, 709-710, 87 S.Ct. 824].) It is true that appellant testified on the stand to much of what he had already told the police in his statement, but he did so only after the statement had been admitted in evidence over his objection. Under these circumstances it is clear that the admission of the statement impelled his like testimony on the stand and therefore, such testimony must be disregarded by us in deciding whether this federal constitutional error constituted reversible error under Chapman. (Cf. People v. Stockman, 63 Cal.2d 494, 502 [ 47 Cal.Rptr. 365, 407 P.2d 277]; People v. Spencer, 66 Cal.2d 158, 163-169 [ 57 Cal.Rptr. 163, 424 P.2d 715].)

We conclude that under Chapman the admission in evidence of appellant's statement constituted reversible error.

The judgment is reversed. The purported appeal from the order denying appellant's motion for a new trial is dismissed.

Moss, J., concurred.

Ford, P.J., concurred in the judgment.

Respondent's petition for a hearing by the Supreme Court was denied September 25, 1968. Mosk, J., was of the opinion that the petition shoud be granted.