Gordon Sutton was charged in Greene County, Arkansas, with burglary of and breaking and entering two car washes. He was convicted of charges involving one of the car washes and found not guilty of charges as to the other. On appeal he alleges two errors: he says the lower court erred when it allowed a police officer to testify, regarding an oral confession; and, he states that he was denied due process of law, and the right to effect counsel for about thirty days after his arrest.
We feel that Sutton should be granted a new trial.
Sutton is a 25 year old resident of St. Louis, Missouri, who has a ninth grade education and stated that he could not read or write very well. He had been a student in a special school. Undoubtedly he was an indigent. Sutton was arrested on September 18, 1976 in Paragould and placed in jail. He *494appeared at his request before the Paragould Municipal Court on the 20th of September. The only record we have of this appearance is minutes signed by the municipal judge which state:
The Defendant requested a preliminary hearing and the Court found enough evidence to bind over to the next term of Greene Court to answer the charge.
There is nothing in the record to indicate an inquiry was made of Sutton’s need or desire for legal counsel. He remained in jail without counsel until October the 12th when counsel was appointed for him. On the 7th of October before counsel was appointed a postal inspector came to the jail to talk to Sutton about his possible involvement in violation of the postal laws. A lieutenant with the Paragould Police Department accompanied the postal inspector. Sutton was informed of his rights by the postal inspector and signed a form waiving all his rights; the inspector used a standard form used by all United States postal inspectors. It is headed in bold letters:
UNITED STATES POSTAL INSPECTION SERVICE WARNING AND WAIVER OF RIGHTS
It is not disputed that when the postal inspector read to Sutton his rights regarding a lawyer the postal inspector told Sutton that he could not provide him a lawyer. As to whether anybody else, the police lieutenant or Sutton, said anything else the record is silent or inconclusive. According to Sutton, after he had talked to the postal inspector, he indicated to the police lieutenant that he could clear up some burglaries, including the burglaries with which he was charged. However, the police lieutenant, who was allowed to testify by the court, stated that actually Sutton confessed that he was guilty of the charges related to the car washes.
We feel the court should not have permitted the police lieutenant to testify. First of all, Sutton should have had an attorney appointed at his preliminary hearing, or the state should have shown that he specifically waived that right. Rule 8.2 of the Rules of Criminal Procedure provides:
*495(a) An accused’s desire for, and ability to retain, counsel should be determined by a judicial officer before the first appearance, whenever practicable.
(b) Whenever an indigent accused is charged with a criminal offense and, upon being brought before any court, does not knowingly and intelligently waive the appointment of counsel to represent him, the court shall appoint counsel to represent him unless he is charged with a misdemeanor and the court has determined thát under no circumstances will imprisonment be imposed as a part of the punishment if he is found guilty.
Rule 8.3 provides that upon the first appearance of the defendant before the judicial officer, and after the defendant has been advised of his rights:
No further steps in the proceedings other than pretrial release inquiry may be taken until the defendant and his counsel have had an adequate opportunity to confer, unless the defendant has intelligently waived his right to counsel or has refused the assistance of counsel.
The burden is clearly on the state to establish that Sutton waived his rights. All doubts must be resolved in favor of the individual rights and constitutional safeguards. Smith v. State, 240 Ark. 726, 410 S.W. 2d 749 (1966).
We cannot say in this case that the state met the burden of proving that it complied with the Rules of Criminal Procedure.
Second, apparently Sutton was improperly informed as to his rights. The warning he was given was for matters regarding the United States Postal Service. He was not warned of his rights about the burglaries. Furthermore, there was a disclaimer which would negate the warning that he had a right to a lawyer. He was specifically told one could not be provided for him by the postal inspector. The warning would not be in accordance with Miranda v. Arizona, 384 U.S. 436 (1966). In a similar case where there was a defective warning form we held that it did not comply with Miranda. Moore v. State, 251 *496Ark. 436, 472 S.W. 2d 940 (1971).
The question of voluntariness must be determined by looking to the whole situation and surroundings of the accused. Watson v. State, 255 Ark. 631, 501 S.W. 2d 609 (1973). Sutton had been charged and placed in jail. He had been taken before a judge but there is no evidence that he had been informed of his rights, including the right to have counsel appointed. He was a man with a limited education; he was questioned while in jail after receiving a defective warning. Considering these circumstances in total, we find that any statement Sutton may have made in the presence of the police officer could not be considered voluntary and it is, therefore, inadmissible.
Reversed and remanded.
Harris, C.J., George Rose Smith and Fogleman, JJ., dissent.