¶1dissenting:
¶2I disagree with the holding of the majority with respect to defendant’s assignments of error Nos. 10 and 11. If we are to follow the ruling of the Supreme Court of the United States in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, it seems to me that the State cannot impeach the defendant by showing prior inconsistent statements on the question of guilt in a confession which has not been found to have been voluntarily given under the Miranda requirements. See: Proctor v. U. S., 404 F. 2d 819 (App. D.C. 1968); U. S. v. Fox, 403 F. 2d 97 (2d Cir. 1968); Groshart v. U. S., 392 F. 2d 172 (9th Cir. 1968); Wheeler v. U. S., 382 F. 2d 998 (10th Cir. 1967); U. S. v. Armetta, 378 F. 2d 658 (2d Cir. 1967); Commonwealth v. Robinson, 428 Pa. 458, 239 A. 2d 308 (1968); *483Gœrtner v. State, 35 Wis. 2d 159, 150 N.W. 2d 370 (1967); People v. Luna, 37 Ill. 2d 299, 226 N.E. 2d 586 (1967); State v. Brewton, 247 Or. 241, 422 P. 2d 581 (1967); U. S. v. Lincoln, 17 U.S.C.M.A. 330, 38 C.M.R. 128.
¶3In this case the cross-examination by the solicitor from the in-custody pre-trial statement given by defendant to the investigating officer went to the very heart of defendant’s defense that he acted in self-defense, or in the heat of passion suddenly aroused. If the State had an admissible confession from defendant, it had ample opportunity to establish it as such. If the confession was inadmissible for failure of the Mirandarequirements, the procedure followed by the solicitor perverted the law.
¶4It seems clear that the trial judge later realized the error because he thereafter undertook to withdraw the evidence from consideration by the jury. However, what is involved here is not judicial supervision of rules of evidence, but constitutional rights of a defendant. The particular right involved is defendant’s Fifth Amendment right against self-incrimination as it has been declared in Miranda. In my opinion a violation of a constitutional right cannot be cured by an instruction to the jury to disregard evidence that constituted the violation.