Newton, J.
On November 30, 1956, defendant’s wife was fatally wounded with a shotgun. Defendant was taken into [377]*377custody immediately after the shooting and was subsequently charged with murder in the first degree in connection with the death of his wife. He was tried, convicted, and the conviction affirmed on appeal. See Reizenstein v. State, 165 Neb. 865, 87 N. W. 2d 560, and 166 Neb. 450, 89 N. W. 2d 265.
The present proceeding is one under the Post Conviction Act. Defendant was denied relief, after an evidentiary hearing, and has appealed. His assignments of error refer to certain exculpatory statements or admissions and present the following questions: (1) Were they voluntary? (2) Was there a judicial determination of voluntariness, and if not was error committed? (3) Was it error for the court to fail to submit the question of voluntariness to the jury?
“In a post conviction proceeding, petitioner has the burden of establishing a basis for relief.” State v. Sagaser, 181 Neb. 329, 148 N. W. 2d 206. It is urged that defendant was mentally defective, that at the time he made the statements in question he was intoxicated and not responsible, that he was afraid of the officers questioning him, and that trickery was resorted to.
Defendant was questioned on the evening of the shooting after being taken into- custody and removed to the county attorney’s office. The pertinent statements made by him may be summarized. He admitted quarreling with his wife, getting a shotgun, and loading it. He said a scuffle ensued and that his wife was shot, but at all times insisted that he intended to use the gun to commit suicide, that he had no intention to shoot or kill his wife, did not pull the trigger, and did not know how the gun was discharged.
In determining the voluntariness of the foregoing statements the circumstances surrounding the event must be kept in mind. Two of defendant’s children were in the house at the time. They were witnesses to the quarrel between defendant and his wife, saw him get and load the gun, and heard the shot. Immediately there[378]*378after two police officers arrived and found the, defendant, with the gun, bending over his wife as she lay on the floor. Defendant does not now and never has contended that any one else shot his wife. Under these circumstances it is apparent that defendant would have, and must have known that he would have, difficulty in satisfactorily explaining his actions except on the ground of an “accidental shooting.” Obviously he could not successfully deny the shooting and his statement is entirely consistent with the “accident” theory which comprised one of the defenses presented at his trial. The statement presents the only logical noncriminal explanation of the occurrence other than a defense of insanity. On the face of it, it presents just such a voluntary explanation as any ordinary person might offer under similar circumstances.
That defendant was below normal intellectually was not disputed. One neuropsychiatrist classified him as a middle-grade moron, and the second that he was subject to a mild, mental retardation. It was conceded that he knew the difference between right and wrong, and was legally sane. On the evening when he was questioned he had been drinking and the evidence regarding whether or not he was intoxicated at that time was conflicting. He now states that he was “under pressure” because about a year earlier his wife had sent for the police and he was beaten about the head while resisting arrest. None of the officers involved in that incident were present when he was questioned, he was not threatened in any manner, but on the contrary was well acquainted with, and on a friendly basis with, several of the officers present. It is said that he was subjected to trickery in that he was asked, with reference to pulling the trigger, why his little 7-year-old son Randy said he did. Defendant’s response was that he did not pull the trigger.
No threats or promises were made or any inducements offered. Do these circumstances warrant a finding by this court, in a post conviction proceeding, that [379]*379defendant’s statements were involuntary? We think not. The alleged trickery, if such it is, was obviously unavailing and came about after the defendant had already made the statements now objected to. For the reasons mentioned above his contention that he was afraid of the officers is not entitled to credence. His mental retardation was not sufficient to prevent his successfully engaging in a minor contracting business wherein he employed a number of people to pick potatoes and paid for their labor, or to earn a living as a laborer in various pursuits. Nor was it such as to prevent his offering a reasonable theory of accidental shooting in explanation of what had occurred. Regarding the extent of his intoxication at the time of the shooting the jury found, under proper instructions, that he was not sufficiently intoxicated to prevent his forming a criminal intent. It was several hours after the shooting, and presumably when he was more sober, that he was questioned. The jury likewise found against defendant on the issue of insanity. He has not, in this proceeding, sustained the burden of proving that his statements were involuntary. See Johnson v. Commonwealth of Massachusetts, 390 U. S. 511, 88 S. Ct. 1155, 20 L. Ed. 2d 69.
The law of Nebraska in operation at the time of defendant’s offense and trial did not require that he be warned that any statements he might make might be used against him as a necessary prerequisite to their admission in evidence. See, Holthus v. State, 138 Neb. 200, 292 N. W. 603; Bush v. State, 112 Neb. 384, 199 N. W. 792. It was sufficient if the statement was voluntarily made and not induced by threats or promises. Schlegel v. State, 143 Neb. 497, 10 N. W. 2d 264. Escobedo v. Illinois, 378 U. S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977, now requires that a defendant be warned of his right to remain silent; and Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A. L. R. 3d 974, which now places restraints on in-custody interrogations, were not then in effect and are not retroactive. See Johnson [380]*380v. New Jersey, 384 U. S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882.
It is said that there was not a judicial determination of the voluntariness of defendant’s statement. The record discloses that the trial court sustained several objections to the admission of this evidence. The objections were based on a lack of foundation and a failure to show that the statement was voluntarily made. On additional proof in this regard the evidence was admitted and the ruling of the court comprises a judicial finding of sufficient evidence to establish voluntariness.
Jackson v. Denno, 378 U. S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908, 1 A. L. R. 3d 1205, requires a determination by the court of the voluntariness of an admission or confession before it can be received in evidence. The court remanded the cause with orders to grant an evidentiary hearing to determine if the confession was voluntary, and stated if it was found to be voluntary a new trial was not necessary but should be granted if the confession was found to be involuntary.
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Newton, J.
On November 30, 1956, defendant’s wife was fatally wounded with a shotgun. Defendant was taken into [377]*377custody immediately after the shooting and was subsequently charged with murder in the first degree in connection with the death of his wife. He was tried, convicted, and the conviction affirmed on appeal. See Reizenstein v. State, 165 Neb. 865, 87 N. W. 2d 560, and 166 Neb. 450, 89 N. W. 2d 265.
The present proceeding is one under the Post Conviction Act. Defendant was denied relief, after an evidentiary hearing, and has appealed. His assignments of error refer to certain exculpatory statements or admissions and present the following questions: (1) Were they voluntary? (2) Was there a judicial determination of voluntariness, and if not was error committed? (3) Was it error for the court to fail to submit the question of voluntariness to the jury?
“In a post conviction proceeding, petitioner has the burden of establishing a basis for relief.” State v. Sagaser, 181 Neb. 329, 148 N. W. 2d 206. It is urged that defendant was mentally defective, that at the time he made the statements in question he was intoxicated and not responsible, that he was afraid of the officers questioning him, and that trickery was resorted to.
Defendant was questioned on the evening of the shooting after being taken into- custody and removed to the county attorney’s office. The pertinent statements made by him may be summarized. He admitted quarreling with his wife, getting a shotgun, and loading it. He said a scuffle ensued and that his wife was shot, but at all times insisted that he intended to use the gun to commit suicide, that he had no intention to shoot or kill his wife, did not pull the trigger, and did not know how the gun was discharged.
In determining the voluntariness of the foregoing statements the circumstances surrounding the event must be kept in mind. Two of defendant’s children were in the house at the time. They were witnesses to the quarrel between defendant and his wife, saw him get and load the gun, and heard the shot. Immediately there[378]*378after two police officers arrived and found the, defendant, with the gun, bending over his wife as she lay on the floor. Defendant does not now and never has contended that any one else shot his wife. Under these circumstances it is apparent that defendant would have, and must have known that he would have, difficulty in satisfactorily explaining his actions except on the ground of an “accidental shooting.” Obviously he could not successfully deny the shooting and his statement is entirely consistent with the “accident” theory which comprised one of the defenses presented at his trial. The statement presents the only logical noncriminal explanation of the occurrence other than a defense of insanity. On the face of it, it presents just such a voluntary explanation as any ordinary person might offer under similar circumstances.
That defendant was below normal intellectually was not disputed. One neuropsychiatrist classified him as a middle-grade moron, and the second that he was subject to a mild, mental retardation. It was conceded that he knew the difference between right and wrong, and was legally sane. On the evening when he was questioned he had been drinking and the evidence regarding whether or not he was intoxicated at that time was conflicting. He now states that he was “under pressure” because about a year earlier his wife had sent for the police and he was beaten about the head while resisting arrest. None of the officers involved in that incident were present when he was questioned, he was not threatened in any manner, but on the contrary was well acquainted with, and on a friendly basis with, several of the officers present. It is said that he was subjected to trickery in that he was asked, with reference to pulling the trigger, why his little 7-year-old son Randy said he did. Defendant’s response was that he did not pull the trigger.
No threats or promises were made or any inducements offered. Do these circumstances warrant a finding by this court, in a post conviction proceeding, that [379]*379defendant’s statements were involuntary? We think not. The alleged trickery, if such it is, was obviously unavailing and came about after the defendant had already made the statements now objected to. For the reasons mentioned above his contention that he was afraid of the officers is not entitled to credence. His mental retardation was not sufficient to prevent his successfully engaging in a minor contracting business wherein he employed a number of people to pick potatoes and paid for their labor, or to earn a living as a laborer in various pursuits. Nor was it such as to prevent his offering a reasonable theory of accidental shooting in explanation of what had occurred. Regarding the extent of his intoxication at the time of the shooting the jury found, under proper instructions, that he was not sufficiently intoxicated to prevent his forming a criminal intent. It was several hours after the shooting, and presumably when he was more sober, that he was questioned. The jury likewise found against defendant on the issue of insanity. He has not, in this proceeding, sustained the burden of proving that his statements were involuntary. See Johnson v. Commonwealth of Massachusetts, 390 U. S. 511, 88 S. Ct. 1155, 20 L. Ed. 2d 69.
The law of Nebraska in operation at the time of defendant’s offense and trial did not require that he be warned that any statements he might make might be used against him as a necessary prerequisite to their admission in evidence. See, Holthus v. State, 138 Neb. 200, 292 N. W. 603; Bush v. State, 112 Neb. 384, 199 N. W. 792. It was sufficient if the statement was voluntarily made and not induced by threats or promises. Schlegel v. State, 143 Neb. 497, 10 N. W. 2d 264. Escobedo v. Illinois, 378 U. S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977, now requires that a defendant be warned of his right to remain silent; and Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A. L. R. 3d 974, which now places restraints on in-custody interrogations, were not then in effect and are not retroactive. See Johnson [380]*380v. New Jersey, 384 U. S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882.
It is said that there was not a judicial determination of the voluntariness of defendant’s statement. The record discloses that the trial court sustained several objections to the admission of this evidence. The objections were based on a lack of foundation and a failure to show that the statement was voluntarily made. On additional proof in this regard the evidence was admitted and the ruling of the court comprises a judicial finding of sufficient evidence to establish voluntariness.
Jackson v. Denno, 378 U. S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908, 1 A. L. R. 3d 1205, requires a determination by the court of the voluntariness of an admission or confession before it can be received in evidence. The court remanded the cause with orders to grant an evidentiary hearing to determine if the confession was voluntary, and stated if it was found to be voluntary a new trial was not necessary but should be granted if the confession was found to be involuntary. A similar procedure has been employed in the present instance.
The question of the voluntariness of defendant’s statements was a primary issue at the evidentiary post conviction hearing. In denying defendant’s prayer for relief the court necessarily found that the statements were voluntary.
Defendant complains that instruction No. 22 given by the court in the original trial was prejudicial to the defendant in that it advised the jury that defendant’s statement was voluntary. The instruction is as follows: “You are instructed that the State, having introduced the admissions and declarations made by the defendant Alex Reizenstein, the truth of any exculpatory or mitigating facts embraced in the declarations or admissions so introduced would be presumed, unless their falsity was shown by the evidence in the case.” This is an instruction requested by defendant and would appear to be a beneficial one from his standpoint. Neither this propo[381]*381sition, nor the included complaint that the court failed to submit to the jury the question of whether or not the statement was voluntary may now be heard. Defendant at no time denied participation in the incidents leading to and resulting in the death of his wife. In view of the situation as it existed it was apparent that he could not successfully deny such participation. The admission of his statement was not prejudicial to him but constituted self-serving statements which substantiated his defense of “accidental shooting.” The only other defenses urged were those of insanity and intoxication.
These issues might properly have been presented on the appeal from the original trial, but it is now too late for their consideration. “An application for a hearing under the Post Conviction Act is not a substitute for an appeal * * *.” State v. Erving, 180 Neb. 680, 144 N. W. 2d 424.
In any event the foregoing factors do not present a constitutional issue. In Jackson v. Denno, supra, the court approved the final determination of the issue of voluntariness by the trial judge and indicated it was not necessary to submit such question to the jury. “In jurisdictions following the orthodox rule, under which the judge himself solely and finally determines the voluntariness of the confession, * * * the 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.” In the absence of a violation or infringement of a constitutional right no relief may be had under the Post Conviction Act. See, State v. Erving, supra; State v. Clingerman, 180 Neb. 344, 142 N. W. 2d 765.
Defendant also assigns as error the “knowing use of false evidence” by the state. This assignment is without merit. The first statement of the witness Lee Shipley which is complained of must be considered in context. Shipley quoted defendant as saying “that he did get the gun and that he did load it, and he said that he [382]*382didn’t intend to kill his wife with it; that he intended to commit suicide, himself; that he done it to scare her— got the gun to scare her, but he intended to commit suicide, himself.” Defendant’s implication that the witness inferred defendant got the gun to threaten his wife is unfounded. The second assertion that Shipley misquoted defendant when he said defendant “didn’t state whether he discharged it or not” (referring to the gun) is likewise unfounded. Defendant was quoted as saying on one occasion that his wife pulled the trigger, on another that “he didn’t know how the gun went off,” and again as repeatedly saying “he didn’t know how the gun happened to be discharged.” Obviously there was no attempt to knowingly use false testimony to- imply that defendant did not know whether or not he discharged the gun or was evading the issue.
The appeal is without merit and the judgment is affirmed.
Affirmed.