(concurring in the decree). I concur in the ruling that there' is no merit in bill of exception No. 1, and concur in the ruling on bill No. 3, but I do not find any merit in bill No. 2. Of course, when a confession is offered in evidence against a party on trial for crime, the state must first prove that the confession was made freely and voluntarily. It was proven by the testimony of Dr. Martin, taken out of the presence of the jury, that the confession made to him was a free and voluntary confession. When the doctor was called as a witness before the jury, to relate the confession, and defendant’s counsel objected on the ground *555that a foundation had not been laid for the introduction of the confession, the counsel did not offer to question the doctor on that subject. There was the opportunity to let the jury know the circumstances under which the confession was made. The manifest reason why the doctor was not examined on the subject by defendant’s counsel, in presence of the jury, was that defendant’s _ counsel had heard the testimony given by the doctor out, of the presence of the jury, and knew that the confession was a free and voluntary one. In fact, the first question asked the doctor when he was called before the jury, by the district attorney, was whether the confession was free and voluntary, and it was to that question alone that defendant’s counsel objected. There was no cause or reason whatever for the objection, and the court very properly overruled it.
I do not agree with the statement, in the majority opinion, that whatever is done out of the presence of the jury, in a criminal case, is as if it had not taken place at all. There are some proceedings that must, and some that need not,-be had in presence of the jury. The taking of testimony on questions of fact, on which the judge must rule, and which do not affect the question of guilt or innocence of the party accused, is an illustration of proceedings to the validity of which the presence of the jury- is not essential. As a rule, it is in the interest of the defendant that the jury is retired on such occasions. If the defendant prefers that the jury hear such testimony, perhaps it is his privilege; but he was not denied any such privilege in this case, and there is no pretense that he was.
I concur in the decree, annulling the verdict and sentence in this case, because the physician who was allowed to testify as an expert on insanity was not qualified to testify as an expert, as he acknowledged.