concurring. I concur because it appears that the trial judge never made a ruling that the confession was voluntary as required by Jackson v. Denno, 378 U. S. 368, 84 8. Ct. 1774, 12 L. Ed. 2d 908 (1964), and Ark. Stat. Ann. § 43-2105 (Supp. 1967). On the other hand, he seems to have left the determination of the question of voluntariness entirely to the jury. I agree that this was reversible error.
If he had held the confession voluntary and not left the determination entirely to the jury, I feel that his action would not have been prejudicial. Where a confession is held voluntary and there is no showing that a hearing thereon in the presence of the jury was inadequate or had any other unfair consequences, there is net necessarily any prejudice to the defendant. See Pinto v. Pierce, 389 U. S. 31, 88 S. Ct. 192 (1967). 19 L. Ed. 2d 31 (1967). While objection was made and a hearing outside the presence of the jury was requested here, the defendant did not avail himself of the opportunity to testify or to offer any testimony on this question when the trial judge recessed the hearing, excused the jury and gave defendant that opportunity. Had the trial judge then ruled the confession voluntary, I cannot see how there would have been any prejudice to the defendant.