(dissenting).
“I am of the opinion that neither Miranda v. Arizona (1966), 384 US 436, (86 S Ct 1602; 16 L Ed 2d 694), nor any of the opinions of this court, compel the reasoning or result approved by the majority in this case.
“Miranda v. Arizona, supra, and State v. Neely (1965), 239 Or 487, (395 P 2d 557; 398 P 2d 482), deal with the use of confessions for the purpose of providing probative facts required to establish the necessary elements of the crime with which a defendant is charged. These cases are thus grounded upon the proposition set forth in the Fifth Amendment of the Constitution of the United States—that no man shall be compelled to give incriminating evidence against himself.
“Incriminating evidence is evidence which tends to show that the defendant did certain acts from which a. trier of fact could conclude that the defendant committed the crime charged. The purpose of the prophylactic rule of exclusion is to prevent the introduction of statements made by a defendant which tend to establish his guilty acts as matters of fact.
“The introduction of statements made by a defendant by way of impeachment to test the credibility of his story of his innocence serves no such purpose.
“A defendant’s statements and his confession thus used have no probative value to prove the crime charged, and the trial court will so instruct the jnry.
“The trial judge, after an extensive hearing, held that the confession of this defendant was voluntary, but that it could not be used as probative evidence because it violated the absolutism rules of procedure laid down by a majority of the Supreme Court of the United States to curb what they believed were unwarranted police practices.
*541“State v. Smith, 242 Or 223, (408 P 2d 942), permits the introduction of statements for impeachment purposes if found voluntary.
“In Walder v. United States (1954), 347 US 62, 65 (74 S Ct 354, 98 L Ed 503), in dealing with an exclusionary rule that prevented the introduction of evidence as proof of the crime charged, the Supreme Court stated:
“ ‘It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. * * *’
“I know of no reason why this court should go beyond the requirements of the Supreme Court of the United States in announcing a rule that would enlarge the exclusionary rules of the Supreme Court to a point not compatible with the purposes sought to be served by the Fifth Amendment.
“Based upon the rationale of Walder v. United States, supra, followed in Tate v. United States (1960), 109 App DC 13, (283 F2d 377), and State v. McClung (1965), 66 Wash 2d 654, (404 P2d 460), I would affirm the judgment.