dissenting. I respectfully, but most vigorously dissent from the ruling of this Court which reverses the judgment of the Circuit Court. As I understand the Majority Opinion, the sole ground for reversal relates to the admission of the confessions made by the three defendants; because the opinion recites: “We have reached the conclusion that, under the circumstances shown in this record, the jury should not have been permitted to consider this confession.” The quoted language means that the Trial Judge committed fatal error when he held that there was sufficient evidence to submit to the jury the question of whether the confessions were voluntary.
Before considering such evidence, I desire to mention the rule under which the Trial Court proceeded. In Morton v. State, 208 Ark. 492, 187 S. W. 2d 335, we said:
IY. Introduction of the Confession. When the State offered in evidence two confessions by the appellant, the court followed the correct practice of retiring to chambers and considering the admissibility, in the absence of the jury. See Charles v. State, 198 Ark. 1154, 133 S. W. 2d 26; Brown v. State, 198 Ark. 920, 132 S. W. 2d 15; Nolan and Guthrie v. State, 205 Ark. 103, 167 S. W. 2d 503.’ ’
In Ashcraft v. State, 208 Ark. 1089, 189 S. W. 2d 374, we said:
“The proper practice is for the court to hear the testimony in the absence of the jury as to the circumstances under which the confession was given, and if there is a substantial question as to whether it was freely and voluntarily made, to submit that question of fact to the jury, after admonishing the jury to disregard the confession unless it was found to have been voluntarily made. So here, the court in chambers, in the absence of the jury, heard many witnesses, both on the part of the State and of the defendant as to the circumstances under which the confession was made and this testimony being in irreconciliable conflict as to whether the confession was voluntarily made, that question was submitted to the jury under proper instructions directing them to disregard the confession and not to consider it for any reason unless they found that it was freely and voluntarily made. We hold, therefore, that there was no error in admitting appellant’s confession in evidence. See Morton and Ashcraft v. State, supra, and Smith v. State, 205 Ark. 1075, 172 S. W. 2d 248; Hendrix v. State, 200 Ark. 973, 141 S. W. 2d 852; Burton v. State, 204 Ark. 548, 163 S. W. 2d 160; Nelson v. State, 190 Ark. 1078, 83 S. W. 2d 539; and Davis v. State, 182 Ark. 123, 30 S.W. 2d 830.”
Again in Moore v. State, 229 Ark. 335, 315 S. W. 2d 907 (Certiorari denied by the Supreme Court of the United States, 358 U. S. 946), we said:
“When the State sought to introduce the appellant’s confession the hearing was recessed to the Judge’s chambers for the Trial Judge to see if there was sufficient evidence of voluntariness to submit the issue to the jury. Such is in accordance with our frequently stated procedure. Charles v. State, 198 Ark. 1154, 133 S. W. 2d 26; Brown v. State, 198 Ark. 920, 132 S. W. 2d 15; Hendrix v. State, 200 Ark. 103, 167 S. W. 2d 503. The Trial judge correctly ruled that there was sufficient evidence offered to take the case to the jury on the voluntariness of the confession; and thereupon the hearing was resumed before the jury.”
Thus, it is standard procedure to have the Court, in the absence of the jury, first hear the proffered evidence to determine whether there is sufficient evidence of voluntariness to submit the issue to the jury. In the case at bar, the Trial Court followed the standard procedure, and forty-six pages of the transcript contain the testimony so heard by the Court in chambers. A total of seven witnesses were heard by the Court. They were:
1. Dale Kasinger, one of the defendants.
2. Ray Kasinger, one of the defendants.
3. David Kasinger, one of the defendants.
4. Jack Gregory, Sheriff of the County.
5. Earl Rife, Criminal Investigator for the Arkansas State Police.
6. Rex Baker, a fellow jail inmate with the Kasinger s.
7. J. W. Studdard, a fellow jail inmate with the Kasinger s.
These seven were the only witnesses that testified in the hearing before the Court in chambers. Sheriff Jack Gregory is the Sheriff of Baxter County, and was the Sheriff at all times herein involved. He testified that he took the statement1 from the three defendants on March 19, 1960, and that the statement from the three defendants was taken three days after the previous statement given him by Dale Kasinger. Sheriff Gregory testified that the defendants “voluntarily and of their own free will and accord made this statement and fixed their names to it”; that one or the other of the three defendants dictated the statements contained in the writing, and then they all read it themselves and each of them signed it. Sheriff Gregory testified that there were no threats or physical force used on any of them at any time, and that the statement was voluntarily made by the defendants “of their own free will and without promise of favor or threat of physical harm.”
Earl Rife testified that he was a criminal investigator for the State Police and that he assisted Sheriff Gregory in the investigation of the burglary and was present when the three defendants signed the written confession on March 19, 1960. He testified that there were no threats of harm or any coercion used to make the defendants sign the statements in the confession; that they were advised that the statements could be used against them; that they were advised they were entitled to counsel; and that the statement was freely and voluntarily made by each of the three defendants.
Of course, the defendants denied the voluntariness, and the witnesses who supported them were fellow jail inmates. I maintain that the testimony of the two officers made a fact question amply sufficient to support the ruling of the Trial Court, which was that the question of the voluntariness of the confession should be submitted to the jury. In McClellan v. State, 203 Ark. 386, 156 S. W. 2d 800, we quoted from an earlier case:
“In many instances, where the accused is confronted with a confession which he cannot deny having made, he insists that it was not freely and voluntarily made. But that insistence does not render the confession inadmissible, where there is testimony to the effect that it was in fact, freely and voluntarily made. In such cases the practice approved by us, which was followed in the instant case, is for the court to hear the testimony in the absence of the jury as to the circumstances under which the confession was given, and if there is a substantial question as to whether it was freely and voluntarily made, to submit that question of fact to the jury, after admonishing the jury to disregard the confession unless it was found to have been voluntarily made.”
After the above quotation we further said:
“The court strictly followed the above rule in the trial of the present ease, and practically all the testimony shows that, there were no promises made with reference to this particular case by the prosecuting attorney or anyone else. The trial judge did not pass on the question as to whether the confessions were voluntarily made. He passed on the question of their admissibility alone, and submitted to the jury the question of whether they were voluntarily made.”
I submit that the Majority of this Court is doing violence to all of our previous cases when it holds that the testimony heard by the Trial Judge in chambers in this case was not sufficient to submit the confessions to the jury. The Majority Opinion also shows that it considered testimony that was heard before the jury when the confessions were offered, because the Majority Opinion names such witnesses. If we ever got to the question of whether the verdict of the jury based on the confessions was correct, than I would call attention to what was said in Palmer v. State, 213 Ark. 956, 214 S. W. 2d 372, in which we reviewed the cases of the Supreme Court of the United States up to that time and pointed out that the United States Supreme Court determines the voluntariness of the confession independently of the conclusion reached by any other fact finding agency or judicial tribunal, whereas, in Arkansas we have always said that if there is substantial evidence to support the jury verdict, then it must be affirmed; and it is my view that until the present opinion this Court has not constituted itself an appellate jury to overrule the verdict.
I submit that in considering whether there is sufficient evidence to support the ruling of the Trial Court in submitting the confession to the jury, this Court has no right to examine the testimony heard before the jury on the voluntariness of the confessions.
Finally, we have here the interesting spectacle of one defendant who confessed and implicated the other defendants, and his confession is admitted by the Majority to be voluntary; and yet a subsequent confession by the same defendant is ruled to be involuntary. This certainly puts criminal procedure in hopeless confusion.
For the reasons herein stated, I respectfully dissent.
In some instances the singular is used, as “statement” or “confession”, since there was only one instrument signed on March 19, 1960. In other instances the plural “confessions” appears. The intention always is to refer to the pages signed by the defendants on March 19, 1960.