(dissenting).

I dissent from the majority opinion:

I would affirm.

The majority holds that the Nevada trial judge “made no preliminary finding about Wallace’s physical condition when the statements were made.”

As shown hereafter, this issue was never raised in the state trial court, or on appeal to the Nevada Supreme Court, or before the district court below. Instead, the issue was whether the confession was voluntary and whether there had been sufficient compliance with the Miranda rule to permit the admission of the confession.

*222 The record of the trial in the state court shows that after the defendant rested, the state called officer Pelizzari preparatory to offering the statements and confession of the defendant. The jury was then excused. [Tr. p. 304] The trial court then stated, “Well I guess we are now in the voir dire process of determining whether or not the proper foundation was laid in accordance with the Supreme Court decisions. Is that right?

Mr. Ahlswede: (The prosecuting attorney) That’s right.

The Court: And this is outside the presence of the jury. This is my initial determination to make.” [Tr. p. 305]

There followed discussion and evidence as to the Miranda warning given the defendant, the condition of the defendant, the surroundings in which the confession was made, and the statements of the defendant, all outside the presence of the jury. At the beginning of the afternoon session, with the jury absent, the court stated: “All right. Now we are on the voir dire proceedings in connection with the proposed offer of the defendant’s confession. I believe the burden is upon you Mr. Ahlswede, to continue to show its voluntariness. Would you proceed.” [Tr. p. 318].

Following further testimony from the witness the court stated, “All right. I guess you have nothing further to say.” (referring to defense counsel Mr. Fry). “All right, my idea about this is that there has been a sufficient compliance, as I indicated when I admitted the so-called acknowledgment in evidence at the noon recess.” (The reference was to the written acknowledgment by appellant that he had been given his full Miranda warnings). “Maybe Mr. Fry, some of those things you have referred to are factors which may be taken into consideration by the jury when the jury makes it final determination as to the validity of the confession, but I think for my purpose, for our purposes here I should at least let the jury listen to the story —the witness will be permitted to testify to the oral conversation he had with the defendant on the night in question.” [Tr. pp. 324-25].

Thereupon, the jury returned and witness Pelizzari repeated his previous testimony and was cross-examined. George A. Randall, a police officer, was examined as to the occurrences at the time the appellant gave his confession. Harry Francis Cuillard, another police officer, was examined as to the occurrences at the time the confession was given and as to the statements made by the appellant. Richard Tuttle, a court reporter was examined as to how he transcribed the statement of the appellant.

I

Thus it appears that the trial judge knew and stated that he must make the initial determination (as quoted above), and ruled that there had been sufficient compliance with the Supreme Court decisions on voluntariness to admit the confession.

The Nevada court was using the Massachusetts procedure “under which the jury passes on voluntariness only after the judge has fully and independently resolved the issue against the accused * * *." Jackson v. Denno, 378 U.S. 368, 378 , 84 S.Ct. 1774, 1781 (1964). The New York procedure found invalid in Jackson v. Denno, permitted the jury to return a general verdict on the question of guilt or innocence without a prior hearing and decision by the trial judge that the confession was voluntary. Under such procedure, it was impossible to discover whether a jury found the confession voluntary and relied on it, or involuntary and supposedly ignored it. Jackson v. Denno, (p. 379, 84 S.Ct. 1774 ). Thus, under the New York procedure, the involuntary confession could go to the jury and affect the verdict.

In Helmick v. Cupp, 437 F.2d 321 (9 Cir., 1971), this court stated:

I think that the Nevada trial court’s ruling and the fact that it admitted the confession into evidence following an extensive “voluntariness” hearing sufficiently complied with the Massachusetts procedure. The trial judge stated that he must make “the initial determination.” “[T]he judge’s conclusions are clearly evident from the record since he either admits the confession into evidence if it is voluntary or rejects it if involuntary. * * * ” Jackson v. Denno, 378 U.S. at 379 , 84 S.Ct. at 1782 . Helmick v. Cupp, supra, in referring to Jackson v. Denno, also stated, “But the Court also indicated that the determination, both of the ultimate fact and the underlying facts, need not be express, but might be implied from the record.” [Emphasis added]

I think further, that Procunier v. Atchley, 400 U.S. 446 , 91 S.Ct. 485 , 27 L.Ed.2d 524 (1971), when read with Judge Barnes’ dissent to the per curiam below [Wilson v. Atchley (9 Cir. 1969) 412 F.2d 230 ], lends support to my position. The Supreme Court stated:

Here the appellant had a full hearing in the state trial court on the question of voluntariness both on the voir dire and before the jury.

II

The issue as to whether the judge had sufficiently found the confession voluntary before admitting it was never raised in the Nevada trial court, the Nevada Supreme Court, or in the district court below. Accordingly, appellant has not exhausted his remedies in the state courts.

(a) The appellant’s contention in the habeas corpus proceedings in the district court were directed entirely to the question of the voluntariness of his confession, and whether there had been a sufficient compliance with the Miranda ruling. Nowhere does he complain about the failure of the trial court to make a prior determination of voluntariness. He concludes his petition by saying: “A confusing question is whether, under the circumstances I was incapable of any form of conversation or if anyone would agree to anything to remove his tormentors and seek release from his immediate pain.”

*224 (b) In the Nevada Supreme Court decision, Wallace v. State, 84 Nev. 603 , 447 P.2d 30 , page 31, the court stated:

(c) Finally, nowhere in the district court decision below, was there any discussion as to failure of the court to make an express or implied finding that the confession was voluntary before it went to the jury. The district court stated:

Accordingly, we should affirm the district court’s denial on the writ on the ground that the Nevada trial court impliedly found the confession voluntary; and on the alternate ground that state procedures were not exhausted and the question was not raised below and therefore appellant should seek his relief in the state courts.

I would affirm the district court’s judgment for the reasons stated above.