¶1(dissenting)-
¶2In deciding a question raised by the record on appeal the appellate court will, as nearly as possible, place itself in the position of the trial judge when testing the ruling made by him.
¶3When the written statement was offered in evidence by the state, the appellant asked and was permitted to examine on voir dire the officer to whom it was made, as shown by the original opinion. No request was then made to offer any further evidence on the issue of the voluntary nature of the statement.
¶4I am not aware of any case where the the accused did not testify, as in this case, that custody and interrogation, alone, of an accused were sufficient to require that the .issue of the voluntary nature of his written statement be submitted to the jury.
¶5I respectfully dissent.