dissenting. I find the majority position inconsistent. On the one hand, they find the events occurring in Guernsey County irrelevant on both the Miranda and voluntariness issues, and on the other hand they find defendant’s oral confession in Guernsey County the major support for a holding of harmless error. A determination of harmless error can only be predicated upon evidence or testimony which itself is constitutionally admissible. Moreover, as will be more fully developed herein, I dispute the majority’s determination that the motion to suppress was directed solely to the taped statement.
Prior to trial, counsel for defendant moved to suppress the tape-recorded statement because it was not voluntarily, knowingly and intelligently made. The following facts were developed at the hearing on that motion:
Defendant was apprehended at approximately 6:30 p. m. on Friday, March 29,1968, by a Guernsey County deputy sheriff. At approximately 7:20 p. m., the assistant Guernsey County prosecuting attorney advised defendant of his Mircmda rights, and defendant stated: “I * '* * [wish] to have an attorney before I make any statements.” Defendant was told he could not have an attorney until the next morning. Instead of delaying the interrogation, the prosecutor asked defendant to sign a waiver card, which he did. Defendant was then interrogated by two prosecutors until approximately 11:00 p. m. that evening, with no apparent success.
After the prosecutors left, the Guernsey County Sheriff began questioning defendant (approximately 11:00 p. m.). *113This interrogation continued for the better part of eight hours (until 7:00 a. m. Saturday morning), and elicited no incriminating admissions. Defendant was then returned to his cell until approximately 1:45 p. m. of the same day. At that time, the Guernsey County Sheriff began interrogating him again (counsel still had not been provided for him). During that interrogation, which lasted approximately three and one-half hours (until approximately 5:00 p. m.), the following occurred:
“A. * * * [The Guernsey' County Sheriff] told me that unless I confessed to doing the crime he was gonna send my fiancee to reform school.
“Judge: He said what?
“A. He said unless I told him that I had committed the crime, he was going to send my, send my girl to reform school and hold my brother as an accomplice before and after the fact. I asked Mm * * * ‘Well, how can I get out of sending her to reform school?,’ and he said by stating you done it, that you committed the crime, and I told him I had to get my girl out of going to reform school, and so I stated that I had done the crime, and he prom— he told me that since I had made the statement, he wasn’t going to * * * send her to reform school. He said he was gonna release her. * * *”
Defendant’s fiancee (girl friend) was a minor.
All the above testimony is uncontradicted. The prosecutor did not attempt to controvert that testimony through the Guernsey County Sheriff, although the sheriff did testify at the hearing on the motion.
After the above transpired, the defendant orally confessed to the Guernsey County Sheriff. In the words of the Guernsey County Sheriff, “we immediately notified the sheriff here in Noble County and told him what was happening, and told him to notify the prosecutor here.” (Emphasis added.)
Defendant led the Guernsey County authorities into Noble County where the body was. They were joined there by the Noble County Prosecuting Attorney and Sheriff. Af*114ter the body was discovered, defendant was immediately taken to the Noble County jail. Within an hour, defendant gave a question-and-answer-style, tape-recorded statement, implicating himself in the crime. In this statement defendant changed his position and stated that the crime was committed in self defense.
Near the beginning of this recorded statement the defendant requested the prosecuting attorney to turn off the tape recorder. The Noble County Prosecuting Attorney turned off the tape recorder. Then defendant requested an attorney. Instead of delaying until an attorney could be obtained, the prosecuting attorney, after an indeterminate time, turned the recorder on again and the defendant answered the prosecuting attorney’s questions. Defendant testified that the following occurred when the recorder was turned off:
“A. # # * he turned it off because I told him that maybe, perhaps I had better talk to an attorney before I answered his questions. * * * he said if I did talk to an attorney that the attorney would tell me the same thing that he’s ask me to say. And he said ‘if you’ll cooperate with us, we can cooperate with you and make it a lot easier for your stay here. ’ ’ ’
The Noble County Prosecuting Attorney testified at the hearing on the motion, and his testimony does not contradict defendant’s testimony on this point. In view of that testimony, I do not understand why the majority says that “appellant did not indicate on the tape in any manner that he wished to consult counsel before speaking at the recording session.” (Emphasis added.)
At the end of the recorded statement, the following occurred:
“Young [prosecuting attorney]: * * * Is there anything you want to add?
“Edgell: Yes, I’d like to add that my brother and my girl friend had nothing whatever to do with it.”
Defendant testified that before the colloquy took place the recorder was turned off and he asked the prosecuting attorney:
*115“A. £Now will this1 get my girl friend out of jail?’ and he said, £Well, you had better put to the effect that she had nothing to do with it on the tape recorder.’ And he turned it back on and I stated that her and my brother did not have nothing to do with it.”
This testimony is uncontradicted.
Continuing, the defendant testified:
“Q. Were you forced to give it [the taped statement] Í
“A. In a sense, yes. Either I gave the statement or so they [Guernsey County Sheriff] told me, or my fiancee and my brother was gonna be put in jail.”
Defendant testified further:
“A. Well the Guernsey County Sheriff’s office clone told me they had enough proof against me to convict me, they said there was no use in me telling you [Noble County Prosemting Attorney] anything other—.” (Emphasis added.)
This testimony is also uncontradicted.
Based upon the uncontradieted testimony, given at the hearing on the motion to suppress, I find that: (1) the Guernsey County prosecutor unconstitutionally deprived defendant of the assistance of counsel; (2) any statements thereafter made by defendant were the product of “compulsion”; (3) certain coercive threats were made to defendant; (4) the totality of the circumstances surrounding the interrogation in Guernsey County were coercive; (5) the effect of the threats and coercive circumstances surrounding the interrogation in Guernsey County continued to and did affect defendant at the time he gave the tape-recorded statement in Noble County; (6) the Noble County Prosecuting Attorney unconstitutionally deprived defendant of the assistance of counsel; and (7) the tape-recorded statement is inseparable from all that preceded it.
The majority avoids discussion of the events that occurred in Guernsey County. They view the motion as directed solely to the voluntariness of the recorded statement. However, such a narrow view ignores what was actually in issue, developed, litigated and argued at the *116hearing. While the motion literally challenged the voluntariness of the taped statement, at the hearing counsel for the defendant attempted to show that the taped statement was the direct product of defendant’s involuntary oral confession in Guernsey County. Additionally, he attempted to show that defendant was denied the assistance of counsel in Guernsey County. Significantly, the prosecuting attorney attempted to prove compliance with Miranda even though the motion was directed to a voluntariness question. Such procedure by either counsel is expressly approved. See State v. Kassow (1971), 28 Ohio St. 2d 141, 144, 145.
Had the trial judge believed that the events in Guernsey County were no part of the motion, he would have limited the testimony solely to the circumstances surrounding the taking of the taped statement. This he did not do. Furthermore, neither counsel objected to any testimony concerning the events in Guernsey County. The absence of any objection indicates that counsel also believed those events to be in issue. Additionally, three witnesses, two of whom were called by the prosecution, testified about the events that occurred in Guernsey County.
In Boulden v. Holman (1969), 394 U. S. 478, the defendant argued that the events occurring shortly after his arrest directly contributed to his two later formal confessions. Neither the opinion of the District Court nor the opinion of the Court of Appeals explicitly referred to that evidence and it was argued that it must be assumed that those courts did not consider it. The majority was unable to assume that such evidence was not considered. Similarily, I am unable to assume that the trial judge did not consider the events occurring in Guernsey County when he ruled on the motion to suppress.
At the close of the testimony, counsel for defendant argued that “the waiver of counsel must be given voluntarily, knowingly and intelligently.” The prosecuting attorney stated that counsel for defendant based his argument in part on the denial “of his constitutional rights because he wasn’t given an attorney.” The trial judge *117acknowledged that Miranda was cited and that a Miranda question was in issue.
Counsel for defendant also argued that “the Noble County officials got the benefit of the long previous questioning that had taken place.” He cited Westover5 and Haynes6. The prosecuting attorney, after pointing out certain testimony, concluded: “For this reason, it is the contention of the prosecution that the statement was voluntarily made.” Without distinguishing between the three parts of the motion, and without giving any reasons, the trial judge overruled the motion.
Thus, as the record shows, not only was the voluntariness of the taped statement in issue, but also the denial of the assistance of counsel in Guernsey County and the relationship of the oral confession in Guernsey County to the taped statement in Noble County. The trial judge’s one ruling decided all these issues against defendant. It is this ruling which is challenged. A further indication that the prosecuting attorney thought the Miranda issue settled is the fact that he did not attempt to prove compliance with Miranda at trial.
While credibility is a matter to be resolved by the trial judge, there is significance in the uncontradicted testimony of defendant. This matter was discussed in Haynes v. Washington (1963), 373 U. S. 503, 510, as follows: “* # * no other evidence was presented to contradict the petitioner’s testimony, either as a part of the prosecution’s case in chief or, even more importantly, by way of rebuttal subsequent to petitioner’s testimony. We cannot but attribute significance to the failure of the state * * * to *118attempt to contradict that crucial evidence.” See, also, Rogers v. Richmond (1961), 365 U. S. 534, 546. Because the testimony of the accused is uncontradicted, I accord significance to the prosecutor’s failure to attempt to contradict it. See Sims v. Georgia (1967), 389 U. S. 404, 406.
Defendant testified that he requested counsel, and that the Guernsey County prosecutor told him none was available until the following morning. Upon that representation, he signed a waiver. When counsel was not provided the following morning, defendant was unconstitutionally deprived of the assistance of counsel.
In Miranda v. Arizona (1966), 384 U. S. 436, the court states, at page 474:
(< * * # jf individual states that he wants an attorney, the interrogation must cease until an attorney is present.” Continuing, at page 475, Miranda states: “If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. * * * This court has always set high standards of proof for the waiver of constitutional rights * * * and we reassert these standards as applied to in-custody interrogation. ’ ’
In the instant case, the prosecuting attorney has not sustained his heavy burden of proving that the defendant knowingly, intelligently and voluntarily waived his rights. In fact, the only clear inference to be drawn from the facts presented is that either the prosecuting attorney deceived defendant into waiving his rights because he never intended to furnish counsel at all, or that defendant was deprived of the assistance of counsel, at the latest, on Saturday morning when counsel was not provided. Moreover, when defendant asserted his right a second time (in Noble County) the prosecuting attorney tallied him out of it. Such police conduct cannot withstand constitutional muster.
*119“Not even the slightest circumvention or avoidance may be tolerated. * * * Once the privilege has been asserted * * * an interrogator must not be permitted to seek its retraction, total or otherwise.” United States v. Crisp (C. A. 7, 1971), 435 F. 2d 354, 357. See, also, Brown v. State (Ind. 1971), 270 N. E. 2d 751; United States v. Smith (C. A. 7, 1967), 379 F. 2d 628; State v. Moon (Iowa 1973), 183 N. W. 2d 644. Thus, I submit that the trial judge erred when, in ruling on the motion to suppress, he held that defendant was not denied the assistance of counsel.
The majority makes no finding, but merely assumes, that the taped statement is separable from all that preceded it. The facts belie such a conclusion. Not only was defendant denied the assistance of counsel in Guernsey County, but no more than five hours elapsed between the time the Guernsey County Sheriff threatened him and the time he made the taped statement. The record also shows that defendant orally confessed immediately after the threat. I find that the character or status of the taped statement is entirely dependent on the circumstances that produced the oral confession in Guernsey County. If the oral confession is inadmissible, there must be a determination that the taped statement does not suffer from the same defect. Leyra v. Denno (1954), 347 U. S. 556, 561 (where the relation is “ ‘so close * * * the facts of one control the character of the other’ ”); Clewis v. Texas (1967), 386 U. S. 707, 710 (“there is here no break in the stream of events * * * sufficient to insulate the statement from the effect of all that went before”); Id. Darwin v. Connecticut (1968), 391 U. S. 346, 349; United States v. Bayer (1947), 331 U. S. 532, 540 (once an accused has been induced to confess “a latter confession always may be looked upon as a fruit of the first”); Westover v. United States (1966), 384 U. S. 436, 496 (“thus, in obtaining a confession from Westover the federal authorities were the beneficiaries of the pressure applied by the local in-custody interrogation”).
*120When the trial judge ruled the taped statement admissible, of necessity, he had to rule either that it was separable from all that preceded it or that the oral confession was not involuntary. It has already been shown that it is inseparable from all that went before.
Voluntariness is to be determined by reference to the totality of the circumstances. In each voluntariness case that the Supreme Court decided it analyzed at least the following factors: (1) The warning or failure to warn the accused of his right to assistance of counsel and his privilege to remain silent; (2) the presence or absence of an attorney; (3) the length of the incommunicado interrogation; (4) the physical acts and/or oral statements of the law enforcement officials; and (5) the relationship between the earlier and later statements or confessions.
It has already been shown that the Guernsey County prosecutor denied defendant the right to counsel, at the latest, on Saturday morning. Denial of the right to counsel, although not in itself coercive, is relevant in establishing whether coercion might have been exerted to overcome the will of the accused. Procunier v. Atchley (1971), 400 U. S. 446, 27 L. Ed. 2d 524; Davis v. North Carolina (1966), 384 U. S. 737.
The length of the uninterrupted interrogation, while quite long, was not unduly so. Moreover, defendant indicated no desire to cease the interrogation. Thus, it is a neutral factor.
The uncontradicted testimony of the defendant shows that the Guernsey County Sheriff made a most coercive and inducing threat to defendant, and it was only after that threat was made that defendant confessed. Coercion can be mental or psychological, as well as physical. See Blackburn v. Alabama (1960), 361 U. S. 199. Compare Leyra v. Denno, supra (347 U. S. 556), and Spano v. New York (1959), 360 U. S. 315 (feigned friendship of defendant by a person assisting the police); Lynumn v. Illinois (1963), 372 U. S. 528 (threat to take away defendant’s children and cut off her welfare payments); Rogers v. *121Richmond (1961), 365 U. S. 534 (threat to “pick up” defendant’s wife); and Harris v. South Carolina (1949), 338 U. S. 68 (threat to arrest defendant’s mother for receiving stolen property).
Those factors must be considered when a voluntariness question is presented to the court. The specific findings on each factor must then be referenced to the “constitutional test” of voluntariness, i. e., “whether the behavior of the state’s law enforcement officials was such as to overbear * * * [defendant’s] will to resist and bring about confessions not freely self-determined.” Rogers v. Richmond, supra (365 U. S. 534, 544).7 Taking the factors collectively, I find defendant’s oral confession involuntary.
Additionally, because the time that elapsed between the oral confession and the taped statement was no more than five hours, I also find that the taped statement was the direct result of the earlier involuntary confession.
Equally erroneous was the prosecuting attorney’s failure to show that the taped statement was not directly produced by the existence of the earlier confession. “ * * * when the prosecution seeks to use a confession uttered after an earlier one not found to be voluntary, it has * * * the burden of proving * * * that the later confession * * * was not directly produced by the existence of the earlier confession.” Darwin v. Connecticut, supra (391 U. S. 346, 351, Harlan, J., concurring and dissenting). That rule was adopted by the majority in Harrison v. United States (1968), 392 U. S. 219. Accord, State v. *122Bryson (1970), 22 Ohio St. 2d 224, 230. Contra statements in the opinion, but not in the syllabus, in State v. Kassow (1971), 28 Ohio St. 2d 141, 146. Compare Lego v. Twomey (1972), U. S. , 40 L. W. 4135 (“the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary”); Arrington v. Maxwell (C. A. 6, 1969), 409 F. 2d 849 (finding that the Ohio law on voluntariness was in conflict with Jackson v. Denno [1964], 378 U. S. 368). Nowhere in the instant case did the prosecuting attorney even attempt to satisfy this burden.
Motivation, volition and representation by counsel in the intervening period between the oral confession and the taped statement are important factors in determining whether the latter is the product of the former.8 However, the lack of opportunity to reflect, the further subjection to police pressures, the failure to dispel the fear created by the threat, the short time period between the oral confession and taped statement, and the subsequent denial of counsel bespeak of no other motive than fear. Moreover, the existence of fear precludes the existence of volition. Thus, nothing occurred in the intervening period to insulate the taped statement from all that occurred before. Clearly, the oral confession and the taped statement were one interconnected event, and both should have been suppressed on that ground. Miranda v. Arizona, supra (384 U. S. 436); Rogers v. Richmond, supra (365 U. S. 534); Harrison v. United States, supra (392 U. S. 219).
Finding that both the oral confession and taped statement should have been suppressed because of both their involuntary nature and because of Miranda violations, I do not find counsel’s failure to object at trial a serious omission. Had the trial judge ruled correctly on the motion, the Guernsey County Sheriff could not have testified to defendant’s oral confession. Bram v. United States (1897), 168 U. S. 532, 541 (“ ‘the rule excludes not only direct con*123fessions, but any other declarations tending to implicate the prisoner’ ”). The Guernsey County Sheriff’s testimony was the direct exploitation of the two aforementioned unconstitutional acts. Wong Sun v. United States (1963), 371 U. S. 471.
Moreover, counsel had no reason to believe that the trial judge, once having ruled the events in Guernsey County noncoercive, and once having decided the Miranda question adversely to defendant, would thereafter, on the same facts, reverse himself and hold the statements inadmissible. Contrary to the majority opinion, this is the same situation as that in Sims v. Georgia (1967), 385 U. S. 538 (erroneous ruling on a pre-trial motion to suppress was reversed even though there was no objection made to the confession at trial). Compare White v. Maryland (1963), 373 U. S. 59, 60 (conviction reversed, even though no objection was made at trial to defendant’s uncounseled guilty plea).
The result reached by the majority is inconsistent with our earlier guideline in State v. Kassow, supra (28 Ohio St. 2d 141).
In Kassow, in a footnote on page 145, the court said that “when any such pre-trial motion to suppress [as involuntary] is filed, the court should require the prosecution * * * to undertake the proof of the Miranda waiver, so that, at a later time, the trial will not be interrupted for such purpose with its attendant inconvenience.” While acknowledging that voluntariness and Miranda are two separate issues, the court fashioned that rule because the facts and circumstances involved are generally related as to time and place. Likewise, it is usually the same evidence which is sought to be suppressed.
In the instant case, the trial judge did not require proof of compliance with Miranda. However, the prosecutor did undertake to prove such compliance. As shown above, the Miranda question was raised, litigated and argued. Yet the majority finds that the issue was not properly raised or litigated, solely because the motion was not *124specifically directed to such question. Such an interpretation will, I submit, hereafter nullify that rule—for even if the issue is raised and litigated it will not be considered as decided solely because the literal language of the motion did not specify it. Where does such a rule leave the prosecution? The question seems especially pertinent in this case because the prosecuting attorney, at the hearing, introduced in evidence the waiver card signed by defendant in Guernsey County, elicited testimony concerning that waiver, and at trial he made no attempt to prove compliance with Miranda.
Thus, because I read the record as showing attempted compliance with Miranda and as clearly showing an involuntary oral confession, I find that the motion to suppress was erroneously ruled upon as a matter of law. Because that motion operated as a continuing objection to all the matters raised therein, I dissent from that part of the majority opinion.
While I agree that a Miranda violation can be harmless error, I find that the violation is not harmless in this case. To be harmless, the court must be able to state that the error was harmless beyond a reasonable doubt. There must be overwhelming untainted evidence, apart from the erroneously received evidence, to sustain the conviction. Stated another way, the error may be harmless if the evidence is cumulative or does not establish an element of the crime, or is not the basis for other evidence which establishes an element of the crime. In the following cases (Miranda or Escobedo violations) the guilt of the defendant was proved beyond a reasonable doubt apart from the receipt in evidence of the improperly obtained evidence. United States v. Diaz (C. A. 1, 1970), 427 F. 2d 636; Whitsell v. Perini (C. A. 6, 1969), 419 F. 2d 95; United States v. Sutt (C. A. 7, 1969), 415 F. 2d 1305; United States v. Crisp (C. A. 7, 1971), 435 F. 2d 354; United States v. Teague (C. A. 7, 1971), 445 F. 2d 114; United States, ex rel. Jiggetts, v. Follette (C. A. 2, 1971), 446 F. 2d 114.
Contrariwise, the following cases found that there was *125not sufficient untainted evidence to sustain the conviction: Cardwell v. Commonwealth (1968), 209 Va. 412, 164 S. E. 2d 699; United States v. Jenkins (C. A. 7, 1971), 440 F. 2d 574; People v. Powell (1967), 59 Cal. Rptr. 817, 429 P. 2d 137; People v. Doherty (1967), 59 Cal. Rptr. 857, 429 P. 2d 177; People v. Jackson (1967), 60 Cal. Rptr. 248, 429 P. 2d 600; In re Morse (1969), 76 Cal. Rptr. 385, 452 P. 2d 601.
As I view the facts, the cases relied upon by the majority have no applicability to the instant case. In each of the three cases there is sufficient untainted evidence to support a conviction beyond a reasonable doubt. In United States, ex rel. Moore, v. Follette (C. A. 2, 1970), 425 F. 2d 925, the court, without deciding whether an earlier oral confession was involuntary, found that a subsequent written confession was voluntary, that it was corroborated in substance by the testimony of a participant, and that the stolen property was found in defendant’s possession at the time of his arrest. The oral confession added nothing that was not already in evidence; it was truly cumulative.
In Commonwealth v. Padgett (1968), 428 Pa. 229, 237 A. 2d 209, the defendant’s statement, taken in violation of Escobedo, was used to impeach defendant’s trial testimony. The differences were so inconsequential that it is even doubtful that Padgett’s credibility was affected. At trial, Padgett said that: the victim was standing; he did not remember how long he had known the victim; he did not serve the victim a drink; and that the victim came at him. In his statement, he said that: the victim was seated ; he had known the victim for one year; there was no mention of a drink; and that the victim came at him.
The Pennsylvania Supreme Court found the statement generally consistent with defendant’s trial testimony and found further that it played an “insignificant” part in the trial. The conflicting statements added nothing to the trial; the crime was entirely proved apart from them; and thus the error was found harmless. By contrast, in the instant case the majority opinion does not claim that either denial of counsel was insignificant.
*126Commonwealth v. Witherspoon (1971), 442 Pa. 597, 277 A. 2d 827, found an Escobedo error harmless. However, the defendant was identified by two witnesses and their testimony was corroborated by other witnesses. The court found the crime was overwhelmingly proved beyond a reasonable doubt apart from the inadmissible statement.
By contrast, in the instant case there can be no finding of harmless error on the facts presented. Both the denial of assistance of counsel and the coercion practiced in Guernsey County directly produced defendant’s oral confession and taped statement. Both were instrumental in his conviction for first degree murder, and without which first degree murder could not be proven. The only evidence that defendant stabbed the victim was his oral confession and taped statement, Thus, it is apparent that without the inadmissible evidence there is no overwhelming evidence to support the conviction. (No weapon was produced at trial.)
If Miranda means anything, it means that when the “accused” requests counsel he is entitled to it, and the interrogation must cease until counsel is provided. Ours is an “accusatorial” not an inquisitorial system and the Miranda decision was designed to permanently implement that principle into American jurisprudence. To “chip away” at the rights announced therein is to erode that principle.
Apart from the Miranda question, however, the receipt in evidence of the coerced oral confession requires automatic reversal. See, e. g., Chapman v. California (1967), 386 U. S. 18; Payne v. Arkansas (1958), 356 U. S. 560; Lynumn v. Illinois, supra (372 U. S. 528); Haynes v. Washington, supra (373 U. S. 503); Malinski v. New York (1945), 324 U. S. 401; Spano v. New York, supra (360 U. S. 315); Jackson v. Denno, supra (378 U. S. 368). See, also, Commonwealth v. Padgett, supra (428 Pa. 229), and Commonwealth v. Witherspoon, supra (442 Pa. 597) (two of the cases relied on by the majority).
Thus, there is not sufficient untainted evidence in the *127instant case to support a conviction for first degree murder. See Thompson v. Louisville (1960), 362 U. S. 199.
For the foregoing reasons, I respectfully dissent.
Westover v. United States (1966), 384 U. S. 1436, involved both a Miranda question and a confession to federal officials who received the benefit of coercion applied by the local officials during in-custody interrogation.
Haynes v. Washington (1963), 373 U. S. 503, held Haynes’ confession involuntary because of continued incommunicado interrogation and harassment. Haynes was told he could n.ot call his wife until he cooperated,
Though no objection was made thereto, the prosecutor inquired oí the truth or falsity of the confession. Such a procedure is expressly prohibited. See Lego v. Twomey, U. S. , 40 L. W. 4135, 4138, n. 12. (“The real issue in such a hearing is whether a confession was coerced. Whether it be true or false is irrelevant; indeed, such an inquiry is forbidden.”)
Had the trial judge considered its truth or falsity when he ruled the confession admissible, this would have been reversible error. See Rogers v. Richmond, supra (365 U. S. 534). However, no such claim is made and we need not consider it.
State v. Bryson, supra (22 Ohio St. 2d 224), at 228, 230.