The opinion
John I. Purtle, Justice, dissenting. I dissent from the majority opinion only as to the admission of appellant’s statement into evidence. It is a fundamental principle that a custodial statement is considered involuntary and the state has the burden of proving it was voluntarily, knowingly and intelligently made after the accused has been informed of his constitutional rights.
In the present case the appellant states, and the record shows, that he was apprehended on a Friday morning and held in either the maximum security section of the jail or in the interview room until the following Monday morning. He alleged he was denied the right to make a telephone call during these three or four days. In the ordinary course of business the Pulaski County jail keeps a record which would show whether appellant was allowed to make a telephone call and where he was kept during the time he was in custody. Unfortunately, the Pulaski County jail’s records for the critical days were missing at the time of trial on June 15, 1981. Mr. Ron Routh, the jail administrator, had said that the records for the maximum security section of the jail had existed as late as April of 1981. The missing records would have clearly established the testimony of one side or the other.
Appellant further stated he was promised that the number of charges would be reduced if he gave a statement. He gave a statement and some charges were dropped.
Under the circumstances I do not believe the confession was voluntary.
Adkisson, C.J., joins in this dissent.