I must respectfully dissent from the portion of the majority opinion concerning the *14admissibility of the confession. The defendant was given 14. of a grain of morphine intravenously (directly into the bloodstream) and 14 of a grain intramuscularly before he confessed. He was in a great deal of pain when he arrived at the hospital. The doctor testified that his leg was nearly shot off. It is obvious from evidence that Mr. Beecher was in a serious physical condition and under the influence of morphine when the confession was given.
I differ with the majority opinion in its interpretation of the holding in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed. 2d 770. In my opinion this case extends to narcotic affected confessions the principle that a confession is involuntary unless it is “the product of a rational intellect and a free will” (Blackburn v. State of Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242). While Townsend v. Sain, supra, may not articulate a new, different and novel standard, it helps to clarify an area of confused thinking pertaining to the admissibility of confessions when narcotics are involved. In very clear language it holds that the requisite voluntariness of a confession is not established if the evidence only satisfies the “coherency” standard. The fact that the defendant was mentally coherent at the time he confessed is not sufficient. As I interpret this case not only must mental coherency be established but all aspects of narcotic influence must be considered before a confession is accepted as the “product of a rational intellect and a free will”.
At first glance, one could be misled by the opinion in Townsend v. Sain, supra, to believe the only reason the Supreme Court of the United States remanded the cause for an evidentiary hearing in the habeas corpus proceeding was because of the possibility that the "truth serum” had been used to procure the confession. However, there were other reasons for the requirement of such evidentiary hearing on remandment, one of which was that the record in and the opinion of the Illinois Supreme Court in People v. Townsend, 11 Ill.2d 30, 141 N.E.2d 729, 69 A.L.R.2d 371 (the direct appeal State opinion involved in Townsend v. Sain, supra) did not reveal indicia that the Illinois courts applied the proper standard of federal law in ruling upon the admissibility of the confession in that case.
In reviewing the evidence in the instant case in its most favorable light for the State, it merely showed that the defendant knew what he was talking about; knew the meaning of what he said; realized what he was saying; and the morphine did not affect his mental capacity. In comparing this with the evidence in People v. Townsend, supra, the conclusion is inescapable that the evidence was far stronger for the establishment of a prima facie case of voluntariness in that case than in the instant case. The following summary of the evidence concerning the influence of drugs appears in People v. Townsend, supra:
“ * * * The medical evidence is, however, that defendant’s use of drugs would not have caused an impairment of his mental processes or rendered him incapable of knowing the purpose and consequences of a confession. Likewise the psychiatric evidence relative to defendant’s low intelligence quotient was that he was sane and thus capable of distinguishing between right and wrong. With these factors eliminated, the resolution of whether defendant possessed the requisite mental powers and freedom at the time he confessed must depend upon a determination of whether the injection of phenobarbital and hyoscine given to treat his illness had the effect of then depriving him of his faculties.
“When defendant testified during the inquiry into his confession, he maintained that, prior to the injection, he had consistently denied any knowledge of Boone’s death. Plowever, within a few minutes after the injection, according to defendant, his vision became blurred, his memory failed him, he could hear people talk but could not understand or recog*15nize them, he answered questions without knowing why, he couldn’t hold his head up, and his only sensation was that he wanted to sleep. He professed not to have any recollection of giving a statement to the assistant State’s Attorney and, while he recalled going to the latter’s office and signing some papers on the day following the injection, he testified his mental confusion continued to a degree that he did not know what he was signing.
“To support the defendant’s testimony, and to rebut intervening evidence given by the police surgeon, the defense called Charles Proctor who qualified as an expert pharmacologist and toxicologist with extensive experience as a teacher and a chemist. In answer to a hypothetical question which encompassed all the facts relating to defendant’s habits and the circumstances of his confession, this witness expressed the opinion that the injection given would have caused defendant to suffer from drowsiness and apathy on one extreme, to complete disorientation and excitation on the other. When commenting upon the properties of hyoscine the witness stated that further effects, from the manner in which it was employed here, would be an impairment of vision and the loss of memory for occurrences during the period the drug remained active in the body. This period, he estimated, would commence 10 to IS minutes after injection and would last for a period of five to eight hours. When cross-examined he revealed he had never actually seen the effects of hyoscine on a human and admitted that he was unfamiliar with its use in treating drug addicts.
“In almost direct contradiction to Proctor’s testimony, the police surgeon, who stated that the medication was given to relieve and pacify the defendant, testified it would not cause a person to go to sleep, would not impair the eyesight, would not cause a loss of memory and would not cause an impairment of mental condition. Nor would such results occur, he stated, even though defendant had actually taken the four phenobarbital pills immediately after the injection. These opinions of the surgeon, it appears, were based on 14 years experience with narcotic addicts, during which he had treated some 3,000 cases of withdrawal reactions in the same manner as he had the defendant. On cross-examination, while admitting that excessive or prolonged use of phenobarbital or hyoscine could cause different results, he remained firm in his opinion that the dosage given defendant would have none of the effects related in the latter’s testimony. Corroborating the testimony of the surgeon zvas that of the officers present, and the assistant State’s Attorney, to the effect that defendant was not sleepy or drowsy after the injection, that he had no apparent difficulty with his eyesight, and that he answered questions put to him clearly and coherently.
"On the basis of the evidence set forth, the trial court found the confession was voluntarily made and denied defendant’s motion that it be suppressed as evidence. This decision of the court is now assigned as error.” (Emphasis supplied)
The Supreme Court of the United States in Townsend v. Sain, supra, was not convinced that the proper federal standard of voluntariness was satisfied by expert testimony that the drugs would not cause “an impairment of mental condition”, or “that defendant’s use of drugs would not have caused an impairment of his mental processes.” Likewise, it is obvious that the proper federal standard of voluntariness cannot be satisfied from the testimony of Dr. Headrick. It must be concluded that expert testimony to the effect that a drug did not cause an impairment of the mental process or have any effect on mental capacity merely goes to establish “coherency” and there must be further evidence that the confession was the product of a rational intellect and a free will in all aspects before it is admissible.
*16Testimony directed towards the effect of narcotics in connection with resistance to confessing or willingness to confess is essential. The words of Justice Goldberg in his concurring opinion in Townsend v. Sain, supra, aid in explaining the type of proof required:
“The petitioner may have been fully aware of what he was doing in confessing and may have suffered no loss of memory, but that is not the issue. The crucial question, and the measure of evidentiary propriety under the Constitution, is whether the drug — whatever label was or was not affixed to it- — ■ so overbore the petitioner’s will that he was unable to resist confessing. Whether or not he was conscious of what he was doing, the petitioner could, because of the drug, have been wholly unable to stop himself from admitting guilt.”
The following language of Justice Frankfurter in Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 was helpful to a federal district court in reaching its decision in Logner v. State of North Carolina, 260 F.Supp. 970, where a drug-infected confession was involved:
“No single litmus paper test for constitutionally impermissible interrogation has been evolved * * * [t]he ultimate test remains * * * the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Rogers v. Richmond, 365 U.S. 534, 81 S. Ct. 735, 5 L.Ed.2d 760. The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps’ to propel the confession.”
Explaining a portion of - the holding in Townsend v. Sain, supra, the Supreme Court of California, speaking through the language of Chief Justice Traynor in In Re Cameron, 68 Cal.2d 487, 67 Cal.Rptr. 529, 535, 439 P.2d 633, 639, stated:
“ * * * An accused’s will can be overborne * * * by the influence of a drug * * * that impairs his ability to exercise his rational intellect and free will. If an accused’s will is overborne because of impairment of his ability to exercise his rational intellect and free will, it is immaterial whether that impairment was caused by the police, third persons, the accused himself, or circumstances beyond anyone’s control. * * ” (Emphasis supplied)
In connection with the matter of drugs, mental conditions, states of mind, confessions and other related matters, see article by Leon M. Despres entitled, Legal Aspects of Drug-Induced Statements, 14 U. of Chicago L.Rev. 601; article styled Medication As A Threat To Testamentary Capacity by David J. Sharpe, 35 N.Carolina L.Rev. 380; and article captioned Intoxicated Confessions: A New Haven in Miranda? by Ozro William Childs IV, 20 Stanford L. Rev. 1269. See also Annotation: “Use or Administration of Drugs or Narcotics as Affecting Admissibility of Confession”, 69 A.L.R.2d 384. However, it must be realized that many state cases cited therein have been indirectly overruled by Townsend v. Sain, supra.
In analyzing the standard that must be followed by federal and state courts alike, pertaining to narcotic-affected confessions, it is necessary that not only must there be sufficient proof that defendant possessed a “coherent” mental condition at the time of confessing, but the state must also establish that the confession was “the product of a rational intellect and a free will” (Blackburn v. Alabama, supra), or stated another way, in the language of Justice Frankfurter in Culombe v. Connecticut, supra, “the product of an essentially free and unconstrained choice of its maker”, by evidence which shows that the defendant’s will to resist confessing was not overborne. *17Rogers v. Richmond, 365 U.S. 534, 81 S. Ct. 735, 5 L.Ed.2d 760.
These standards are stated in hroad general terms, for each confessionary act must be judged on its own peculiar set of circumstances. When narcotics are involved the following may have relevance: euphoria (a feeling of well-being or elation), loss of anxiety, loss of inhibitions, loss of resistance to free expression, etc. On the other hand, willingness to confess may be controlled by other tendencies, unrelated and unaffected by the narcotic. Many individuals are motivated by religious backgrounds or remorseful attitudes which militate toward free expression following unusual stressful experiences. The motivation to purge one’s soul of an awesome conscience-hurting experience often compels a confession. Certainly inquiries before the trial judge should include the following which are listed numerically but without intended priority:
1. Dosage of the narcotic (whether normal, less than normal, or more than normal) and its effects upon individuals.
2. The time it takes for the narcotic to take effect and the time relationship of the inculpatory statement and the effect of the drug.
3. If the influence of the narcotic is established, then it should be determined whether the drug created in the defendant a state of mind causing one or more of the following:
(a) Euphoria;
(b) Loss of inhibitions;
(c) Loss of anxiety;
(d) Loss of resistance to free expression, particularly concerning participation in a crime;
(e) A susceptibility to suggestions and/or interrogation;
4. If such narcotic did create in the defendant’s state of mind one or more conditions listed above under “3.”, was such condition of such significance as to cause his will to be overborne.
5. Did the defendant possess on the occasion tendencies or motivations unrelated to a drug, which compelled the confession.
While the above list of inquiries is certainly not comprehensive, I hope that, nevertheless, rhey provide some insight to the problems in this area. I am of the opinion that a trial judge must look to all relevant factors, whether attendant to the influence of the drug or not, and give due consideration and weight to such in reaching his determination of the involuntariness or voluntariness of any alleged confession, bearing in mind that the burden of proof is on the State.
Possibly the majority opinion may be understood as holding that the drug aspect of Townsend v. Sain, supra, applies only to a “truth serum” drug. If so, such would be clearly erroneous. In reversing the first appeal case pertaining to a confession allegedly made by the defendant Beecher in Kilby Prison some five days after his arrest in Tennessee while being interrogated by State investigators followii-g an injection of morphine, the Supreme Court of the United States stated, among other things, in Beecher v. Alabama, 389 U.S. 35, 89 S.Ct. 189, 19 L.Ed.2d 35 that at the time of the alleged confession Beecher was still in pain, “under the influence of drugs” and at the complete mercy of the prison hospital authorities. There can be no doubt that the fact that Mr. Beecher was under the influence of morphine 1 at the time he con*18fessed was one of'the factors considered in that review in determining said confession was not characterized by the requisite voluntariness.
I further disagree with the majority opinion since it wrongfully places the burden of proof on the defendant. The entire treatment by the majority in its opinion of the admissibility of the drug-infected confession as well as specific portions thereof compels me to this conclusion.
The law of this State is clear that confessions are presumed to be involuntary or prima facie inadmissible and the burden is on the State to show they are voluntary. In a recent case, Harris v. State, 280 Ala. 468, 470, 195 So.2d 521, 523, this Court stated the following:
“ * * * We quote from the old case of Bonner v. State, 55 Ala. 242, wherein the law pertaining to the procedure to be followed in determining the admissibility of a confession is accurately set forth:
Tn that jealous care which the law exercises at all times in protection of life and liberty; in the tender regard it pays to human weakness and frailty, it is laid down as one of the cardinal rules of evidence, that confessions of guilt shall not be received against a prisoner, until it is first affirmatively shown that they were made voluntarily They are prima facie inadmissible, and the onus rests on the prosecution to repel the imputation of undue influence. Any inducement of profit, benefit, or melioration held out; any threat of violence, injury, increased rigor of confinement, or any other menace which can inspire alarm, dread, or the slightest fear, is enough to exclude the confession, as not voluntarily made. The law cannot measure the strength of human fortitude or will to resist importunity, persuasion, or proffered alleviation, on the one hand, or threats, no matter how slight, on the other. Hence, to justify their admission, confessions must be voluntary in fact.
'And the question, whether confessions were voluntarily made or not, is one of law, to be decided by the court, and not one of fact for decision by the jury. When such testimony is offered, preliminary proof should first be made, showing the circumstances under which the alleged confession was made; and when desired by either party, the court, before admitting the evidence, should hear the testimony offered on each side, and from it determine whether the testimony establishes the fact that the confession was voluntarily made. * * * ’ See also Duncan v. State, 278 Ala. 145, 176 So.2d 840; Sanders v. State, 278 Ala. 453, 179 So.2d 35; White v. State, 260 Ala. 328, 70 So.2d 624; Logan v. State, 251 Ala. 441, 37 So.2d 753; Taylor v. State, 42 Ala.App. 634, 174 So.2d 795.”
Because the confession by the defendant to Dr. Headrick in the case at bar fails to meet the necessary standard of voluntariness as required by this Court’s decisions and controlling decisions of the Supreme Court of the United States, as now extended by Townsend v. Sain, supra, to drug-affected confessions, I am of the opinion the case should be reversed.
LAWSON, J., concurs in the foregoing dissenting opinion of HEFLIN, C. J.After Remandment
PER CURIAM.In our opinion in this case we concluded that no error infected the trial of this appellant. However, the record was silent as to whether any jurors had been challenged by the state for cause on account of any affirmative answer they may have given to the general question propounded *19during the qualification of the jurors as to whether any of them had a fixed opinion against capital punishment.
Accordingly, we remanded this cause to the lower court to determine, first, whether any jurors had been challenged on the above mentioned ground, and second, whether in the event a juror had been challenged by the state and excused because of an affirmative answer to the general question, would such juror nevertheless consider the evidence and instructions of the court and return a verdict of guilty although such verdict could result in the death penalty.
This procedure was to determine whether the doctrines enunciated by the United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed. 2d 776, and Boulden v. Holman, Warden, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433, had been complied with.
Pursuant to the directions contained in our order of remandment, the lower court, on 21 October 1971, conducted a hearing for the purpose of making the determinations directed in the order of remandment.
The appellant, attended by his counsel, Hon. Morgan Weeks, and Hon. Thomas Armstrong, and Hon. John T. Black, District Attorney for the Ninth Judicial Circuit, and Hon. Bert T. Latham, Assistant District Attorney for said circuit, were present at the hearing.
Mr. Black, being examined as a witness by Mr. Latham, testified that he solely had conducted the prosecution of the appellant at the trial which resulted in the appellant’s conviction. Among the questions addressed to the venire by Judge Newton B. Powell, presiding at the trial, in qualifying the jury, was whether any of the jurors had a fixed opinion against capital punishment.
Mr. Black testified unequivocally that not a single juror was challenged by the state for cause, either because of their answers to the question as to their belief in capital punishment, or for any answer to other qualifying questions.
Mr. Weeks and Mr. Armstrong in behalf of the appellant testified to the effect that their notes made in connection with the trial, and which they had with them, indicated that some of the jurors had been challenged, their jury sheets showing a notation “for cause” by certain jurors’ names. However, they themselves had challenged some of the jurors for cause because such jurors had asserted a fixed opinion of appellant’s guilt, and their notes did not indicate who had imposed the challenges indicated by their notations on the jury sheet. Neither could say that the state had challenged any juror for cause because they could not remember such happening, and everyone was being careful “about Witherspoon” at the time of the trial.
Judge Powell, who presided at appellant’s trial, and at the hearing on remandment, stated at the conclusion of the hearing that “the District Attorney advised the trial judge that he would not challenge anyone on the theory that they would not convict if the death penalty was involved. The Witherspoon case was not very old at the time, and there was some question about it, and, * * * the court recalls that no one was challenged because of the capital punishment issue.”
At the conclusion of the evidence and after arguments of respective counsel, the court entered a judgment finding, (1) that no juror had been challenged by the State of Alabama for any cause, and (2) that no juror was challenged by the State of Alabama because of a fixed opinion against capital punishment.
The findings by the court are overwhelmingly supported by the evidence. Such facts preclude any possible application or operative influence of the doctrine enunciated in Witherspoon and Boulden, supra.
HEFLIN, C. J., LAWSON, MERRILL, COLEMAN, HARWOOD, BLOOD-WORTH, MADDOX, and McCALL, JJ., concur in the opinion after remandment.*20A majority of the Justices would now affirm the judgment.
Affirmed.
MERRILL, COLEMAN, HARWOOD, BLOODWORTH, MADDOX and McCALL, JJ., concur. HEFLIN, C. J., and LAWSON, J., dissent as to affirmance and adhere to the views expressed in the opinion of HEFLIN, C. J., on original deliverance.. It is interesting to note that according to Goodman and Gilman, The Pharmacological Basis of Therapeutics, page 191, inability to concentrate, difficulty in mentation, and apathy are produced by moderate amounts of morphine (up to % of a grain) as well as euphoria, drowsiness, loss of anxiety and inhibition. Further such amounts bring about increased ease of discriminating and making *18decisions. This note is supplied not as supportive evidence for my dissenting opinion for such information was not in the record, hut merely as a passing comment.