The opinion
SCHAUBR, P. J.
I concur in the judgment and in everything said in Mr. Justice Shinn’s opinion except certain portions of it which deal with defendant’s asserted confession and which are inconsistent with the views hereinafter expressed. Defendant’s statement, as applied to count II, in my opinion constitutes a confession. While the evidence tending to negative its voluntary character seems to me to *78 be of little weight I believe that we cannot say that as a matter of law there was no issue of fact as to whether such confession was voluntarily given. Such issue should have been submitted to the jury with appropriate instructions. Upon the entire record, however, I am of the opinion that the failure to so submit such issue did not affect the verdict as to count II.
A petition for a rehearing was denied August 24, 1942, and appellant’s petition for a hearing by the Supreme Court was denied September 10, 1942.