The opinion
Ed. F. McFaddin, Associate Justice, concurring. I concur in the result reached by the Majority, but there are certain implications contained in the Majority opinion from which I desire to disassociate myself. It is true that some of the appellant’s testimony, if given unlimited meaning, might be taken to say that he was questioned continuously for long hours; and it is because such testimony is unexplained that I vote for a reversal. However, I think it is only fair to make certain observations for the benefit of the Bench and Bar.
We have a rule of long standing that in a felony case this Court considers every assignment contained in the Motion for New Trial, even though the assignment is not argued on appeal. In Martin v. State, 206 Ark. 151 , 174 S. W. 2d 242 , we stated and applied this rule and cited the cases of long standing; and it is because of this rule that the appellant is winning a reversal in the case at bar. The Motion for New Trial in the present case had seven assignments, and one of these related to the defendant’s motion to exclude the confession from the consideration of the jury. We have to consider this assignment even though it was not argued on appeal.
The appellant was represented in the Trial Court and on appeal by an experienced attorney. If that attorney had thought that his client had been questioned continuously for a long period of time, I am confident that the point would have been vigorously urged on appeal. So the loose statement contained in the appellant’s testimony about the time for which he was questioned went unnoticed by bis counsel, as well as by tbe State, and, therefore, remained unexplained. On this the appellant is winning a windfall reversal. On a retrial, the continuity of the questioning will be a matter that the Court and jury may consider in view of the reversal now made.
No one will sanction continuous questioning for a long period of time, but the Majority Opinion might be considered as criticizing the Trial Court and the officers on a point which the appellant’s experienced attorney did not even argue; and so, while I agree with the result in the case, I think some explanation is due in fairness to the Trial Court, the officers, the appellant’s attorney, and all others.