concurring in part and dissenting in part.
1. I concur in the conclusion of inadmissibility because it is clear from the record, as a matter of law, that the trial court erred in finding that the alleged confession was voluntary. That is the issue that was raised below and the ruling that is urged as error here. Deciding it does not require second-guessing defendant’s counsel by sua sponte raising other issues and rendering decisions as to them.
During the course of the trial, when a police officer began to testify about defendant’s custodial statement, defendant moved “for a Jackson-Denno hearing,” thus invoking his federal constitutional right to the “due process” procedure set out in Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964) to assure that his Fifth and Fourteenth Amendments right against compelled self-incrimination was not violated by the introduction of the confession. The Court in Jackson recognized: “The procedures used in the trial court to arrive at its conclusions on the coercion issue progressively take on added significance as the actual measure of the protection afforded a defendant under the Due Process Clause of the Fourteenth Amendment against the use of involuntary confessions.” Id. at 391. He argued, after the evidence was presented out of the presence of the jury, that it showed that the statement was not voluntarily made, “absolutely not.” The court disagreed and found, to the legal degree necessary as a threshold matter to allow the jury to consider it, that it was voluntary. And so, despite defendant’s urging that it was not voluntary and should not be put before the jury, it was admitted.
Defendant again challenged the court’s ruling, in the motion for new trial, still insisting that the alleged confession was not voluntary. The court, however, denied the motion.
On appeal, defendant enumerates as error the court’s finding of voluntariness. He argues that the evidence from the Jackson-Denno hearing which is not disputed shows that the court could not find that the statement was voluntary. While he does not expressly recite that what he stands on is the right against compelled self-incrimination in state courts which is protected by the Fifth and Fourteenth Amendments, it is patent that this is his ground.1 He is simply repeating what he claimed below. He does, of course, in addition cite and rely in this court on the Georgia statute on the subject, OCGA § 24-3-50.
The trial court erred in its finding of voluntariness, reaching this *463result because the judge did not believe defendant’s version, which differed only in some respects from that given by the investigating officer and the police chief. However, the uncontested objective facts did not give berth to such a finding. The other special concurrence ably lists some of them.
Some deserve elaboration. The warrantless arrest of both defendant and his wife, while they were walking along the railroad track towards town that morning was itself a circumstance to be considered in determining voluntariness because it set the abrupt and power-exhibiting tone of the long detention. This was exacerbated by the thorough search of their trailer home which took place with defendant and his wife in police custody there, before they were taken to the police station.
Another fact contributing to coercion as opposed to voluntariness is that they were detained at the police station, except when taken in mid-afternoon to another city for a polygraph test instigated by the police chief, for over six hours. So, too, is the fact that defendant’s mother had gone off to get an attorney after talking with defendant, his wife, and the police chief, yet the questioning continued, the attorney was not available, and sometime later the alleged confession was obtained.
The burden was on the State to prove that the confession was voluntary, not on defendant to prove it was involuntary. Lego v. Twomey, 404 U. S. 477 (92 SC 619, 30 LE2d 618) (1972). For applications of this rule, see Jones v. State, 245 Ga. 592, 598 (8) (266 SE2d 201) (1980); State v. Osborne, 174 Ga. App. 521 (330 SE2d 447) (1985). The trial court’s finding was clearly erroneous, as it was counter to a preponderance of the evidence, and I agree that the alleged confession should have been excluded.
2. That is not to say that the motion for directed verdict should have been granted. It was denied because the alleged confession was in evidence, albeit we have found that it was erroneously admitted. We cannot go back, exclude the alleged confession, and on the basis of the remaining evidence substitute our judgment for the trial court’s. The state is entitled to retry the case without the inadmissible evidence. Defendant is entitled to a new trial, as prayed for in his motion for new trial based on the ground here discussed.
“The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement — the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own free will, and to suffer no penalty, as held in Twining [v. New Jersey, 211 U. S. 78], for such silence.” Malloy v. Hogan, 378 U. S. 1, 8 (84 SC 1489, 12 LE2d 653) (1964). See Miranda v. Arizona, 384 U. S. 436, 463 (86 SC 1602, 16 LE2d 694) (1966).