delivered the follow-
ing opinion
with Justice GRAY concurring therein.
We think our colleagues are misconstruing the record in this case sufficiently to make a substantial variance in the ultimate decision reached. We also think some of the impact and intended guidelines for dealing with confessions, as set forth in recent decisions of the United States Supreme Court, are being side-stepped and evaded.
Of course, we do not pretend to ignore or dispute the obvious and admitted guilt of the defendant, Richard Kirk. . The manner of dealing with his confession and other errors in the trial, however, could have had an important bearing on the decision of the jury in finding for death in lieu of life imprisonment. The testimony of Kirk’s accomplice, Shirley Brearley, must have played an important part in that decision. ,
Mrs. Brearley and Kirk were jointly charged with first-degree murder. At the trial, the prosecuting attorney granted immunity to Mrs. Brearley and announced that nothing she said would be used against her. Very little reliance, if any, ought to be placed in the testimony of the accomplice under these circumstances. The court did instruct that the jury could not convict on her testimony alone, unless it was corroborated by other credible evidence. See State v. Vines, 49 Wyo. 212, 54 P.2d 826, 834-836.
In many important respects the testimony of Mrs. Brearley was not corroborated except by the written confession of Kirk. Thus, it is apparent why the handling of this confession by the trial court was critical. It is not for our court to decide whether the confession was in fact true or not true, but it is our duty to say whether it was properly received.
In 19 Wyo. L. J. 203 (1964), Professor John O. Rames of the University of Wyoming wrote a very enlightening article on the admissibility of confessions in Wyoming. He undertook to determine whether Wyoming has an approved procedure for the handling of confessions, and if so whether it is in keeping with recent pronouncements of the United States Supreme Court. We will not quote lengthy excerpts from Professor Rames, but we acknowledge a debt to him for much of our background and reasoning pertaining to the handling of confessions in Wyoming.
Probably the only case in which our procedure for handling confessions is ’ described in some detail is Clay v. State, 15 Wyo. 42, 86 P. 17, 19, rehearing denied 86 P. 544. In that case reference is made to a “preliminary examination” for the purpose of determining whether the incriminating statements should go to the jury. The court then said if it “clearly appears” the statements were not voluntary, they should be excluded. Plowever, if it appears such statements were voluntary, or the “evidence is conflicting” as to whether they were in fact voluntary, then, in either event, such statements should go to the jury.
*496We cannot say how many trial courts have followed the procedure sanctioned in the 1906 opinion in Clay nor how many have not. However, the record in Kirk’s trial makes it clear the presiding judge in his case did follow such procedure. During the course of the preliminary examination relative to the admissibility of the confession, when defense counsel was examining the officer who had taken Kirk’s confession, the trial judge interrupted and stated: “You know you are going to have to go through all this again.” Counsel was apparently familiar with the practice of that court and replied, “I know that, Sir.” The judge then added, “Before the jury and in the presence of the defendant.” After which he explained: “The only purpose at this time is whether or not the showing is sufficient to permit it to be heard before the jury.”
With two more questions thereafter, defense counsel concluded his cross-examination of the officer. Without giving an opportunity for further witnesses the court ruled: “I think there is sufficient showing so the matter may be presented to the jury.” Thus, the preliminary examination was concluded and the matter of the confession was presented to the jury, with the following instruction from the court:
“An alleged written confession purporting to have been made and signed by the defendant has been introduced in evidence before you. You are instructed that unless you believe from the evidence beyond a reasonable doubt, that the defendant made the same and that he made it freely, voluntarily and without compulsion, persuasion or promises, and was not induced by duress, threats, coercion, fear, or through any improper influence, you will then reject the same and not consider it for any purpose whatsoever.”
On the preliminary hearing conducted by the trial court with respect to Kirk’s confession, the prosecuting attorney took the affirmative and called detective Robert J. Papp of the Connecticut State Police Department. When Kirk’s attorney cross-examined this witness and concluded such examination with the statement “I have no further questions,” we think that meant what such a statement ordinarily means at the close of a particular examination. It simply meant no further questions of that witness. For our colleagues to assume Kirk did not wish to be heard or offer evidence on the voluntariness of his confession is, in our view, reading something into the record which is not there.
The trial judge had already announced his procedure and his ruling by saying the only purpose at that time was to determine whether the “showing is sufficient to permit it to be heard before the jury.” Add to this the fact that neither Kirk nor his attorney indicated at any time that defendant rested or was through at the preliminary hearing — for that matter, not even the prosecution had an opportunity to rest or to indicate it had offered everything it wished at this special hearing — and the only feasible conclusion to be drawn from the record is that the trial judge interrupted the hearing and ruled, without an opportunity for further evidence from either side, that there was “sufficient showing so the matter may be presented to the jury.” No doubt, as we have already indicated, procedures practiced and followed by this particular judge were well known to attorneys on both sides and were for that reason complied with.
In Edwards v. Harris, Wyo., 397 P.2d 87, 93, we quoted from 2B Barron and Holtzoff, Federal Practice and Procedure, § 1104, pp. 463 — 464 (1961), to the effect that only those errors are waived which might have been corrected had the proper objection or request been made. The mere fact that the trial judge held a hearing out of the presence of the jury is sufficient to. show defendant was objecting to the admission of his confession and requesting that such evidence be excluded. A further objection or exception after the judge announced his ruling on defendant’s request would have served no purpose.
Rule 46, W.R.C.P., specifies no formal exceptions to rulings of the court are neces*497sary. In speaking of the Federal rule on this subject, which is similar to our state rule, it is stated in 2B Barron and Holtzof f, Federal Practice and Procedure, § 1021, p. 313 (1961):
“If the court and the other parties knew what action the losing party wished taken * * * the appellate court may consider the alleged error even though no formal objection was made or exception taken. Thus if a motion or objection of the party, for which he has stated his grounds, is overruled, * * * no further objection or exception is required. ⅜ * ⅜ it
The very nature of the hearing discloses the admission of the confession was being objected to on the ground that it had not been voluntarily given, and for us to ignore the fact that defendant was requesting its exclusion is to shut our eyes to the obvious. Moreover, the United States Supreme Court, in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 1779-1780, 12 L.Ed.2d 908, 1 A.L.R.3rd 1205, where defense counsel did not specifically object to the admission of a confession, said the trial court was aware that counsel was questioning the circumstances under which Jackson had been interrogated. It treated the case as one where a question has been raised about the voluntariness of a confession and said it is axiomatic that a defendant is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession.
In the Jackson case, the United States Supreme Court granted certiorari in a habeas corpus action to consider the constitutionality of procedure in New York governing the admissibility of a confession alleged to be involuntary. The court held, with Justices Clark, Harlan and Stewart dissenting, and with Justice Black dissenting in part, that the New York procedure (essentially the procedure followed in Kirk’s trial) violated the due process clause of the Fourteenth Amendment to the United States Constitution.
According to the New York procedure, as explained in Jackson,1 the trial judge must make a preliminary determination regarding a confession offered and exclude it if in no circumstances could the confession be deemed voluntary. But if the evidence presents a fair question as to voluntariness, as where certain facts bearing on the issue are in dispute or where reasonable men could differ over the inferences to be drawn from undisputed facts, the judge receives the confession and leaves to the jury, under proper instructions, the ultimate determination of its voluntary character and also its truthfulness.
This, it is to be noted, is what the trial judge did at Kirk’s trial. And the Kirk jury returned only a general verdict upon the ultimate question of guilt or innocence, so that it is impossible to ascertain whether the jury found the confession voluntary and relied on it or found it involuntary and supposedly ignored it. This situation was criticized in the Jackson opinion.2
Prior to the Jackson decision, the United States Supreme Court had upheld the constitutionality of the New York rule for confessions, in Stein v. People of State of New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522, rehearing denied 346 U.S. 842, 74 S.Ct. 13, 98 L.Ed. 362. Much of the opinion in Jackson was devoted to a critical analysis of the Stein rationale. Stein was expressly overruled.3
From our understanding of the opinion in Jackson, we think the procedure of a trial court with respect to a purported confession cannot be approved unless the court has either followed the procedure identified in Jackson as the “orthodox rule” or the procedure identified as the “Massachusetts rule.” 4
Under the orthodox rule, the judge himself solely and finally determines the volun-*498tariness of the confession. Under the Massachusetts rule, the jury passes on volun-tariness only if and after the judge has fully and independently resolved the issue against the accused and has made express findings on disputed fact questions of volun-tariness. A footnote in Jackson indicates the Massachusetts procedure was approved as not posing hazards to the rights of a defendant.5
Our colleagues cite Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 1775, 16 L.Ed.2d 882, for the proposition that Kirk is precluded from receiving any benefit under Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, because the decision in Johnson said Miranda applied only to cases in which the trial began after the Miranda decision. We cannot, however, overlook the fact that the statement relied on from Johnson was qualified, at 86 S.Ct. 1779, by the explanation that the nonretroactivity of the decisions in Escobedo 6 and Miranda will not preclude persons whose trials have already been completed from invoking the same safeguards as part of an involuntariness claim. As specifically pointed out by the Supreme Court, at this point, the retroactive limitations would not have the effect of curing errors committed in disregard of constitutional rulings “already clearly foreshadowed.”
We need to make it clear we are not relying upon the decisions in Escobedo and Miranda, but rather upon the decision in-Jackson, which preceded the Kirk trial by approximately six months. Therefore, the constitutional rulings relied on by us were already “clearly foreshadowed,” in Jackson, prior to Escobedo and Miranda and prior to Kirk’s trial.
In reversing Jackson’s conviction, the Supreme Court remanded his case to the Federal District Court to allow New York a reasonable time to afford the accused either a proper hearing on the issue of voluntariness or a new trial without the confession.7 This procedure was followed by the Court of Appeals for the Fourth Circuit in Davis v. State of North Carolina, 4 Cir., 310 F.2d 904, 908. Davis’ conviction was ultimately reviewed by the United States Supreme Court in Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895. There, the Supreme Court said the review of voluntariness in cases in which trial was held prior to the decisions in Escobedo and Miranda is not limited in any manner by these decisions. 86 S.Ct. 1764. Kirk’s trial was held subsequent to the Escobedo decision and prior to the Miranda decision.
It seems it should be mandatory on us, where the same trial procedure was followed as was originally followed both in Jackson’s trial and in Davis’ trial, either to grant a complete new trial or to do what was done on appeal in those cases. In other words, the minimum required of us, according to the dictates of the United States Supreme Court, is to remand Kirk’s case for a new and proper hearing on the issue of voluntariness, or in the alternative if the prosecution prefers, for a new trial without use of the confession. This was done by the Supreme Court of Oregon in State v. Brewton, 238 Or. 590, 395 P.2d 874, 880.
It is of interest to notice, according to Professor Rames’ article, that the State of New York gave Jackson a new trial, and he was again convicted of first-degree murder. Also, that New York subsequently, in People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179, 183; 46 Misc.2d 209, 259 N.Y.S.2d 369, expressly adopted the Massachusetts rule for New York. One other state (Oregon), which had previously followed the New York rule, subsequently went over to the Massachusetts rule on account of the Jackson decision;8 and two other *499states have subsequently discarded the New York rule and selected the orthodox rule.9
In 1 A.L.R.3rd 1205, there is a summary of the Jackson decision. In the annotation beginning at page 1251, the case is referred to as a landmark case and its effect on several state decisions is shown. The annotation indicates Arizona now follows the Massachusetts rule;10 that while Arkansas formerly followed the New York rule, it has more recently followed a procedure satisfying the Jackson requirements; that New Jersey continues to follow the Massachusetts rule; that because approval of the Massachusetts rule was indicated in Jackson, Oregon has specifically adopted such a rule; that it is not clear whether Pennsylvania, which formerly followed the New York rule, will now adopt the orthodox rule or the Massachusetts rule; and that Tennessee which formerly followed the orthodox rule has now said, if the trial judge goes further and applies the Massachusetts rule, that would not be a denial of due process under the ruling of the United States Supreme Court in Jackson.
We have not pretended to discuss the question as to whether Kirk’s confession was in fact voluntary or involuntary. What we have been saying is that the decision in the Jackson case makes it mandatory on the trial judge to fully and independently resolve the issue of voluntariness himself and make express findings in regard thereto. Only after he has done this would it be proper to submit the question to the jury, if it is submitted at all to the jury. This required procedure simply was not followed in Kirk’s trial.
Without meaning to infer an opinion of our own on the voluntariness question, we think it might be helpful to point out that it is actually a closer question than our colleagues have indicated. It has not, for example, been mentioned that Kirk was brought into the police station as Stoning-ton, Connecticut, between 1 a. m. and 2 a. m.; that he was placed in an office and subjected to intermittent questioning by Lieutenant Main until 7 a. m. and thereafter by the chief of police. Just how long we do not know. There is no showing that Kirk was advised of his rights prior to this prolonged questioning. Papp said he found him in a cell at 10 :30 a. m. and took him in for further questioning.
In his testimony, Papp admitted he may have suggested it would look better to Wyoming authorities if they could be told Kirk cooperated. He specifically indicated that it would be in the best interest of both Kirk and Mrs. Brearley to tell the truth. Kirk claims, and it was not denied, that prior to his statement the chief of police said: “If you was any kind of a man whatsoever — you say you love that woman out there, she is carrying your child, if you have any feelings whatsoever for her or that child and you are any kind of a man, you will tell me the story.”
Kirk may have been mistaken about the intentions of Mrs. Brearley. Her subsequent actions against him would indicate he was. It cannot be denied, however, from his undisputed testimony, that he loved her and that he thought she loved him. The detective related how, before Kirk’s statement was given, Kirk asked Mrs. Brearley several times if she loved him; that she said, “Yes, I love you. I will wait for you.”; and that she sat and held his hand during the time his statement was being written out.
Further undisputed testimony indicates that while Kirk’s statement was being taken, the previous written statement of Mrs. Brearley was on the desk before him. Not only would it seem from all these circumstances that there may possibly have *500been inducements for Kirk to “tell the truth,” but there may have been inducements for him to tell it like the person he was seeking to protect had told it. Our colleagues seem to assume Kirk did “tell the truth” like his companion had told it, when they say the statements made by him at Stonington paralleled the statement originally given by Mrs. Brearley to the officers. This may very well be true, but we cannot say whether it is or not because Mrs. Brear-ley’s written statement was not admitted in evidence.
It was claimed at Kirk’s trial that Mrs. Brearley had been used as a tool to obtain Kirk’s confession for the police. The confession itself tends to bear out Kirk’s story that he had previously agreed with Mrs. Brearley to protect her and the unborn child of her and Kirk.
In Maki v. State, 18 Wyo. 481, 112 P. 334, 335, 33 L.R.A.,N.S., 465, this court adopted a definition of what constitutes a voluntary statement, to the effect that it must proceed from the spontaneous suggestion of the party’s own mind, “free from the influence of any extraneous, disturbing cause.”
The presence of a trusted woman companion, professing love for him and, in the words of the detective, engaging- in “love talk,” along with her urging that he “tell the truth,” impliedly as she had told it, was surely an extraneous and disturbing cause which could have had an influence on a person like Kirk.
Our colleagues seek to distinguish this case from Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265; and from Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029. We are inclined to believe, however, that there is some similarity between those cases and Kirk’s case.
In any event, we repeat that it is not our purpose to try to establish that Kirk’s confession was in fact not voluntarily given, but rather that this question was not properly resolved by the trial judge, according to the standards of the Jackson case.
Denial of Right to Cross-Examine
Aside from the fact that the trial judge failed to make a proper determination with respect to the voluntariness of Kirk’s confession, we are in further disagreement with our colleagues on another point having to do with constitutional rights.
Amendment VI, Constitution of the United States, guarantees the accused, in all criminal prosecutions, the right to be confronted with the witnesses against him; and Amendment XIV guarantees no state shall deprive any person of life or liberty without due process of law. We have said one of the most basic elements of due process is the right to hear and cross-examine witnesses. Holm v. State, Wyo., 404 P.2d 740, 744.
The defense in Kirk’s trial had an opportunity to cross-examine Shirley Brearley, his accomplice, when she was called by the prosecution as a witness against Kirk. However, at that time detective Papp had not testified and no mention had been made of the purported confession of Kirk. It is quite understandable, as explained by defense counsel, that he did not at that time care to go into the matter of Mrs. Brear-ley’s written statement which she had given to the police in Connecticut.
After Papp had testified and after the court had allowed Kirk’s confession to go to the jury, defense counsel then sought to call Mrs. Brearley as an adverse witness for cross-examination. For some reason which is not clear to us, the trial judge apparently questioned defendant’s right to do so. He should not have questioned the right because the accomplice was clearly an adverse and hostile witness. She it was who informed against Kirk in Stonington, Connecticut, and caused him to be held for the murder in question. She testified on the stand that she hated Kirk. She had been granted immunity by the State for the purpose of turning State’s evidence against Kirk. Indeed, in every sense of the word this woman was the State’s principal prosecuting witness, and the prosecution would have had serious difficulty in proving a *501case for the death sentence without her testimony.
In any event, it appears the trial judge took the question of defendant’s right to ■call Mrs. Brearley as an adverse witness to his chambers. The record fails to show what transpired there, hut later the judge refused to let defense counsel question the witness for impeachment purposes about "her own written statement, indicating it -did not accord with the understanding reached in chambers.
Our colleagues, without knowing what the understanding was, seem to assume defendant stipulated not to question the witness about her own statement, or maybe they assume defendant stipulated not to impeach the credibility of the witness. In any event, we think it hardly fair to say there was a complete absence of evidence attacking the credibility of Mrs. Brearley, when the trial court denied defendant the right to impeach her by showing the difference between her testimony and her ■former written statement.
Surely, a waiver by stipulation of a constitutional right so vital as the right of •cross-examination is not to be assumed without the record showing exactly what the ■stipulation was. The only thing which can logically be assumed is that, in chambers, the judge laid down certain restrictions and limitations on the cross-examination; and that during the examination, he refused to let the scope of the examination go beyond his previously imposed limitations.
It seems clear to us that if the judge did, while in chambers, impose restrictions and .limitations on the cross-examination of such an important adverse witness as an .accomplice turning State’s evidence, then such restrictions would be erroneous and prejudicial per se.
A footnote in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 1765, 12 L.Ed.2d 977, points out that an accused may “intelligently and knowingly” waive his privilege against self-incrimination and his right to counsel. In People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, 370, certiorari denied 381 U.S. 937, 946, 85 S.Ct. 1765, 14 L.Ed.2d 702, the Supreme Court of California said such waiver cannot be effected unless it is intelligently and competently given.
It follows, without the need for stating reasons, that if the constitutional right of self-incrimination and the right to counsel cannot be waived unless such waiver is intelligently and competently given, then the constitutional right of cross-examination likewise cannot be waived unless the waiver is intelligently and competently given. In Kirk’s case, the record is a blank and wholly fails to show a waiver of the right of cross-examination intelligently and competently given by defendant.
Conclusions
Inasmuch as the trial court failed to make its own determination of the voluntariness of Kirk’s confession, according to the guidelines laid down in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3rd 1205; and inasmuch as defense counsel was denied the right to cross-examine the accomplice in this case on a matter which was proper for cross-examination, it is our opinion the case ought to be reversed and remanded for new trial.
. 84 S.Ct. 1781.
. 84 S.Ct. 1782.
. 84 S.Ct. 1788.
. 84 S.Ct. 1781-1782.
. 84 S.Ct. 1781, n. 8.
. Escobedo v. State of Illinois, 878 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.
. 84 S.Ct. 1790-1791.
. State v. Brewton, 238 Or. 590, 395 P.2d 874, 878-879.
. People v. Walker, 374 Mich. 331, 132 N.W.2d 87, 90-91; and State ex rel. Goodehild v. Burke, 27 Wis.2d 244, 133 N.W.2d 753, 762, certiorari denied 384 U.S. 1017, 86 S.Ct. 1941, 16 L.Ed.2d 1039.
. Since tlie annotation, Arizona has reiterated its requirement for determination of voluntariness in State v. Mileham, 100 Ariz. 402, 415 P.2d 104, 107-108.