dissenting.
It must be kept in mind, in this case we are not concerned with a prophylactic rule to deter police activities, but with the question of the voluntariness of a confession. Therefore, I am unable to agree with the rule of law proposed by the majority that from the “totality of the circumstances surrounding” the giving of the statements by the defendant there exists “a greater risk of coercion than can he countenanced” by this court. (Emphasis supplied.) The majority cite for this statement: Fikes v. Alabama, 352 US 191, 77 S Ct 281,1 L ed 2d 246, reh den 352 US 1019, 77 S Ct 553, 1 L ed 2d 561 (1957) and Clewis v. Texas, 386 US 707, 87 S Ct 1338, 18 L ed 2d 423 (1967).
This general statement by the majority leaves the courts with a rule as difficult to follow and apply as it would be to follow a platted course with a rudderless ship.
In Fikes the facts disclosed the prisoner “was an uneducated Negro, certainly of low mentality, if not mentally ill,” and the rule for determining the ques*500tion of voluntariness of a confession, under all of the circumstances, is set forth as follows:
“ ‘The limits in any case depend upon a weighing of the circumstances of pressure against the power of resistance of the person confessing. What would be overpowering to the weak of will or mind .might be utterly ineffective against an experienced criminal.’ 346 US, at 185.” Fikes v. Alabama, Supra, 352 US at 197, 198, 1 L ed 2d at 251.
While the above rule is not restated in Clewis v. Texas, supra, it is clear the United States Supreme Court applied this rule, for the court there pointed out that the defendant was a Negro with “only a fifth-grade education” and “had apparently never been in trouble with the law before,” and whose “faculties” were impaired by inadequate sleep and food, si dm ess, and long subjection to police custody with little or no contact with anyone other than police.
The issue then is not whether we as- -individual members of society sitting as judges approve or disapprove, of the actions of the police officers. The question presented is whether or not the course of action taken by the police in this case, when properly weighed* was such as to overcome the defendant’s power to resist and, therefore, his confession was involuntary. There is not one iota of evidence in this case that the defendant’s admission of complicity in the murder was the result of pressure exerted by the poliéé, as will later be established.
Not a single factor relied upon in.either Fihes or Clewis is present in this case. The record before us discloses a defendant apparently of better-than-average intelligence, experienced in criminal activities and the processes involved after arrest and detention. There was no prolonged interrogation of the defend*501ant, or evidence of any psychological pressure of any kind.
Also, I cannot agree with all of the majority’s conclusions as to uncontroverted facts. In item No. 2 they point out that after defendant entered his plea of guilty to the robbery charge, the judge found it necessary to make no formal entry at that time on the docket because of defendant’s fear of Sipes. It must be noted that the court in this matter relied and acted solely upon the self-serving declarations of the defendant and the urgings of his attorney.
The record in this respect shows that prior to this time the defendant had once before entered a plea of guilty to the robbery charge and was then returned to the Rocky Butte jail where Sipes was also being held. Sometime after the defendant’s return to the Rocky Butte jail it was rumored that if Sipes “ever got his hands on him [defendant], he’s going to kick his ass,” and a prisoner there at that time testified that Sipes stated “he ought to kill anyone that snitched on him he ought to kill them.” This same prisoner stated the defendant did not have the reputation of being a “snitch”. The record does not disclose whether the defendant had told Sipes he had pleaded guilty or whether Sipes obtained the information through other channels.
Very shortly thereafter defendant’s attorney sought to have defendant’s guilty plea withdrawn. It was at this time that the representations were made by the defendant and his attorney that the defendant was afraid of Sipes.
Therefore, while it appears that the trial court withheld the docket entry of guilty at this time on the representations of defendant, it also appears to me that the court knew nothing of an agreement kept by *502the state that defendant would not have to testify against Sipes. Also, one gleans from the record that Sipes was interested only in the defendant’s not appearing as a witness against him for he thought then he would either not be tried because of a charge against him pending in California, or, if tried, he would be acquitted. Therefore, Sipes’ later statement to- the officers, after defendant’s second appearance and plea of guilty, that they were again on good terms was undoubtedly true.
Contrary to the impression left by item 3 of the majority’s opinion on undisputed facts, that only after defendant had entered his plea of guilty were Sipes and defendant placed in different cells, the record clearly shows that at all times, both before and after defendant entered his second plea of guilty, Sipes and defendant were lodged in separate cell blocks. The officer in charge stated that in all instances where two persons were arrested for the same crime their policy was to keep these parties separated. This testimony of the officer is uncontradicted.-
• ■ The statement of the majority as to item '8 leaves the impression that neither the officers or Sipes were anxious to have Sipes present when they interviewed Atkins'. The record shows that Sipes was present “At Mr. Atkins’ request,” not at Sipes’ request or the request of the officers.
• It must also be kept in mind that the detectives never once requested Sipes to try and obtain a confession from the defendant, but only to find out if possible the whereabouts of the gun used in the murder.- This alone was the purpose of putting the two together in the county jail in the courthouse.
Also, the following testimony of the defendant as to what occurred in the jail in the courthouse, where *503defendant and Sipes were together, should be taken into consideration when evaluating this record:
“A Well, I was in the cell next to him—there was a partition between us—and we had conversation.
“Q And what did—what were these conversations?
“A Well, he wanted me to give a statement about the murder and he said that I could get life for armed robbery and I could get life for mnrder so it didn’t make any difference. Me said if 1 would malte a statement on the murder, that they would drop the armed robbery on him and let him go to California on this charge and so he said it shouldn’t make any difference to me one way or the other.
“Q And did he advise you that he felt confident he would beat the armed robbery in Cali■fornia?
“A Yes, he said he was very confident he would beat it.
“Q Did you agree to this, Mr. Atkins?
“A No, I didn’t.
“Q All right. And how many days were you separated with just the partition between you?
“A For three days.
44* ;v; * * *
“A Well, when we were in the same cell, at first—the first day he was real nice and he was— tried to get me—give me cigarettes and things, and I told him that I knew what he was trying to do and I wasn’t going for it, and on the second day he started getting pretty mad. He didn’t do anything that day; he just threatened to. And then the third day he told me that—he said, ‘Either you’re going to do it today, buster, or I’m going to beat the hell out of you,’ and I said, ‘You’re just going to have to do it, John, because I’m not going down there and say something that I didn’t do,’ and then he started slapping me around that evening, and *504he came into my cell about three o’clock in the morning and he told me, he said, ‘Either you’re going to do it or you ain’t going to live until tomorrow,’ so I told him that I would do it.” (Emphasis supplied)
Of course, both the defendant and Sipes testified at the in camera hearing that Sipes slapped defendant around and threatened his life if he didn’t confess to this brutal murder, and defendant testified that if he hadn’t been afraid of Sipes he would never have confessed.
The testimony of both defendant and Sipes in this respect is clearly unworthy of belief. Sipes testified when he slapped the defendant around the defendant complained to the jailer. The jailer testified there was no disturbance in the cell and defendant never made any complaint about Sipes’ conduct or his fear of Sipes.
The clincher, however, is the fact that when the defendant met Mr. Tamblyn on his way to meet the police officers and make his statements, this attorney and defendant together went by themselves into the attorney’s interviewing room and conferred, and according to Mr. Tamblyn defendant at this time never once mentioned Sipes.
In my mind, this court is overstepping the boundary limitations imposed upon it by Article VII, § 3 of the Oregon Constitution when it attempts to interpose its own findings of fact for those of the trial judge.
Also, when the so-called uneontroverted facts found by the majority are placed in proper perspective, it becomes quite clear that the judge who heard and saw the witnesses reached the correct conclusions when he *505found that the admissions of the defendant were voluntary and admitted them in evidence.
The uncontroverted facts show, first, that the officers had never attempted to pressure the defendant into admissions of guilt; second, that the sole reason Sipes wanted defendant to confess was not the request of the police, hut for Sipes’ benefit; and third, that while Sipes conjured up in his own mind the belief that if defendant confessed he would be benefited, such a belief was only a figment of Ms imagination born of Ms wishes.
For the reasons above set out, I dissent. I would sustain the judgment rendered.
Justices McAllister and Goodwin join in tMs dis-. sent.