dissenting.
I dissent from the ruling made in Division 1 (c) and from the judgment of reversal. The majority has reversed this case for the reason that the jury might have drawn an inference that the appellant might have failed a lie *29detector test and therefore the results of the test were indirectly placed before the jury because the alleged co-conspirator Ramer took a lie detector test and entered a guilty plea. This is sheer speculation. There was no evidence of the results of either test before the jury and this is not an issue in the case.
The issue to be decided here is whether an incriminating statement given during a lie detector test .by a private independent polygraph operator is admissible in evidence. This depends upon whether the incriminating statement was freely and voluntarily given. The evidence here shows clearly that the incriminating statement was given freely and voluntarily. The appellant requested-the test, he was given the Miranda warnings prior to the test and waived his constitutiQnal right to counsel and to remain silent, and he was apprised that anything he said could be used against him. During a "break” in the test he voluntarily told the polygraph operator that he had been present during the murder. Under these circumstances the weight of authority holds that this incriminating statement is admissible. So long as a person has been advised of his rights as required by Miranda and waives them, I see no difference in admitting a voluntary statement given to a police officer in an in-custody interrogation and a statement given to a private independent polygraph operator as here. 23 ALR2d 1306, 1310, § 5; 19-24 ALR2d Later Case Service 731, § 5. See also Johnson v. Aetna Ins. Co., 124 Ga. App. 112 (183 SE2d 85).
The majority has also misconstrued the trial judge’s post-conviction report. The question asked was, "Although the evidence suffices to sustain the verdict, does it foreclose all doubt respecting the defendant’s guilt?” The trial judge answering "no” merely indicated that there was a jury question in the case. Furthermore, the evidence need only establish guilt beyond a reasonable doubt, not guilt beyond all doubt.
I am authorized to státe that Chief Justice Nichols concurs in this dissent.