specially concurring:
This case again involves the rule that all material witnesses on the issue of the voluntary nature of a confession must be called or their absence satisfactorily explained before a confession may be admitted in evidence. The majority opinion recognizes the rule but finds that all material witnesses had been called.
I question the practicality of the rule which originated with People v. Rogers, 303 Ill. 578. Oddly enough that case was just the converse of more than twenty subsequent cases. There the trial court refused to admit the confession because he was satisfied that it had been obtained by beating the defendant into submission thereby coercing the confession. Although it was unnecessary to a decision in that case, a hard and fast rule was promulgated that a trial court should absolutely refuse to admit a confession into evidence until the State has examined every police officer and everyone present at a defendant’s questioning. The next case was People v. Sweeney, 304 Ill. 502, where the trial court admitted the confession without all persons present being called and the conviction was reversed on authority of the Rogers case. The majority opinion comments on the variations in subsequent cases (many of which are cited), but notes that the rule still exists.
In People v. Dale, 20 Ill.2d 532, Mr. Justice Bristow, joined by Mr. Justice Hershey, the writer of the majority opinion in this case, expressed dissatisfaction with the result produced by application of the rule. Their dissent points up its inflexibility. I am also of the firm conviction that this is a matter of competency of evidence and should be left to the discretion of the trial judge. If, in order to satisfy himself of the competency of a confession, he requires all of the material witnesses to be called, he should do so. On the other hand if he were satisfied to hear less than all of such witnesses, that also should be within his discretionary power, and we should reverse only where we are satisfied that there was a clear abuse of discretion.
The primary consideration is whether a confession is voluntary or involuntary. To automatically reverse any conviction without even looking at the evidence upon which the trial judge made his finding of voluntariness because all material witnesses were not called or their absence explained, places form above substance. If the present rule insured any degree of certainty as to a proper determination of the voluntariness of a confession, it would merit the position it now holds. I believe, however, that justice has been averted on many occasions by its application. It has been stated that the rule is not a mechanical one but a practical one designed to assist the trial court in determining whether the confession was involuntary. (People v. Jennings, 11 Ill.2d 610.) The cases do not, however, support this statement, nor can they because of the inherent nature of the rule.
Bristow and Klingbiel, JJ., join in this special concurrence.