dissenting. The majority of this court finds that the homemade knuckles, chain, two hacksaws and tin shears are all items that should have been suppressed as evidence by the trial court since they were obtained by an unconstitutional search of the defendant’s automobile. I agree.
This leaves two items to be considered, the revolver and the machete. The majority of the court finds that the revolver was properly not suppressed since one of the arresting officers, Officer Fye, discovered it when he was lawfully removing the car to the police station. As to the machete, the other arresting officer, Officer Vandergriff, testified that he saw it lying on the rear floorboards of the car at the time of the arrest. However, the trial court did not refuse to suppress the revolver and machete on the ground that the police officers lawfully learned of their presence prior to the illegal search. The fact that all items found were admitted on the basis that the search was incidental to the arrest argues against any consideration of the testimony concerning their lawful discovery prior to the unlawful search. Further, as the trial court determined that the search was lawful, there would have been no need to consider such testimony.
The testimony respecting the discovery of the revolver was conflicting. The defendant stated that he put the revolver on the car seat at the time of the arrest. Officer Fye first stated *55that he was driving the defendant’s car to police headquarters when he kicked the gun with his foot. He later stated that he kicked it when he got into the car and also testified that he kicked it when the car was coasting down grade, with a dead battery, to a gas station. Officer Vandergriff testified that the gun was found at the time of the illegal search when Officer Fye ran his hand under the seat.
From the trial court’s remarks when the defendant’s renewed motion to suppress the evidence was overruled, it is ap-. parent that the conflicting testimony regarding the discovery and seizure of the revolver and the credibility of the testimony regarding the discovery and seizure of the machete were not considered. That court thought that the complete search was lawful. In my opinion, the determination of these factual issues is not a proper function of this court.
All members of the court are in agreement that whether the admission of unconstitutionally obtained evidence is prejudicial is, to use the words of Chief Justice Warren in Fahy v. Connecticut (1963), 375 U. S., 85, 11 L. Ed. (2d), 171, 84 S.Ct., 229, “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” I do not agree with the findings of the majority that “the jury could reasonably reach no other conclusion than that defendant was guilty of the crime of carrying a pistol concealed about his person. Hence, it would be difficult to find that the admission in evidence of the chain, knives, hacksaw blades, tin snips and pair of knuckles, which were found in the illegal search of defendant’s car, could have contributed to defendant’s conviction. # * * Qertainly, it cannot be said that the defendant may have been prejudiced by the erroneous admission of that evidence.”
My disagreement with the above-quoted findings rests upon three premises. First, the indictment charges the defendant with carrying “concealed on or about his person a dangerous weapon, to-wit: a 38 caliber revolver and one homemade knuckles.” The jury returned a general verdict finding the defendant guilty of “carrying concealed weapons.” From the general verdict it cannot be ascertained whether the jury found the defendant guilty in reliance upon both the revolver and the knuckles or the revolver only or the knuckles only. In my opin*56ion, even assuming that the revolver was admissible, the jury-may well have found the defendant innocent of concealing the revolver but guilty of concealing the knuckles.
When this court on its own motion finds that there was sufficient evidence to convict defendant of carrying a pistol concealed about his person, it makes a determination that it cannot be sure was made by the jury in view of the general verdict. It may well be that, if the illegally seized evidence was excluded and only the conflicting evidence regarding the presence of the revolver was admitted, the jury would have found the defendant innocent. For this court to decide this issue is to deprive defendant of his right to have a jury find him guilty as guaranteed by Sections 5 and 10 of Article I, Ohio Constitution.
Second, if the indictment is construed narrowly, as only charging defendant with concealing a revolver, the nature of the other items of unconstitutionally obtained evidence is such as I think would “reasonably” inflame the jury so that it would more readily believe testimony concerning the revolver and even be so inflamed as to bring in a verdict against the defendant despite its objective findings.
Third, it may well be that, after the trial court admitted all the physical evidence seized, the jury regarded the indictment as charging defendant generally with carrying concealed weapons and thus based the verdict, partly or entirely, on evidence of defendant’s carrying of concealed weapons other than those specifically enumerated in the indictment. In such case, though there be other evidence sufficient to support the conviction, the rule regarding coerced confessions would be applicable. As the Supreme Court of the United States in Payne v. Arkansas (1958), 356, U. S., 560, 568, said: “* * * where, as here, a coerced confession constitutes part of the evidence before the jury and a general verdict is returned, no one can say what credit and weight the jury gave to the confession. And in these circumstances this Court has uniformly held that even though there may have been sufficient evidence, apart from the coerced confession, to support a judgment of conviction, the admission in evidence, over objection, of the coerced confession vitiates the judgment because it violates the Due Process Clause of the Fourteenth Amendment.” See Spano v. New York *57(1959), 860 U. S., 315; Watts v. Indiana (1949), 338 U. S., 49; Malinski v. New York (1945), 324 U. S., 401; Lyons v. Oklahoma (1944), 322 U. S., 596.
Accordingly, I would reverse the judgment and remand the cause for a new trial with only lawfully seized evidence being admitted in evidence.
O’Neill, J., concurs in the foregoing dissenting opinion.