# Britten v. State

> Supreme Court of Georgia · May 31, 1965 · 221 Ga. 97

URL: https://www.frixlaw.com/law-library/cases/9566662

## Case

- **Full name:** Britten v. the State
- **Court:** Supreme Court of Georgia
- **Decided:** May 31, 1965
- **Citations:** 221 Ga. 97; 143 S.E.2d 176; 1965 Ga. LEXIS 390
- **Precedential status:** Published
- **Opinion:** Dissent by Almand
- **Judges:** Candler, Almand
- **Cited by:** 54 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9566662

## Opinion text

Almand, Justice,
dissenting. I dissent from the ruling in Division 6 and the judgment of affirmance. In my opinion the decision of the Supreme Court of the United States in the case of Jackson v. Denno, 378 U.S. 368 (84 SC 1774, 12 LE2d 908) is controlling and that decision requires a ruling to the contrary. That case involved the procedure in the State of New York for the determination of the voluntariness of a confession, which procedure is in all respects similar to the Georgia procedure, and is the procedure which was followed in the case at bar. In that case it was held: “It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, Rogers v. Richmond, 365 U.S. 534 , 81 S. Ct. 735 , 5 L.Ed.2d 760 , and even though there is ample evidence aside from the confession to support the conviction. Malinski v. New York, 324 U.S. 401 ( 65 S. Ct. 781 , 89 L.Ed. 1029 ); Stroble v. California, 343 U.S. 181 ( 72 S. Ct. 599 , 96 L.Ed. 872 ); Payne v. Arkansas, 356 U.S. 560 ( 78 S. Ct. 844 , 2 L.Ed.2d 975 ). Equally clear is the defendant’s constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession. Rogers v. Richmond, supra. In our view, the New York procedure employed in this case did not afford a reliable determination of the voluntariness of the confession offered in evidence at the trial, did not adequately protect Jackson’s right to be free of a conviction based upon a .coerced confession and there *107 fore cannot withstand constitutional attack under the Due Process Clause of the Fourteenth Amendment.” Jackson v. Denno, supra, p. 376 .
The majority opinion seeks to distinguish this case from Jackson v. Denno on the ground that the defendant in his statement to the jury freely admitted his participation in the offense and there was no evidence to controvert the evidence on the part of the State that the confession was freely and voluntarily made. The reply to this is that the trial judge submitted the question of voluntariness to the jury and the jury was permitted to consider the voluntariness of the confession not separate and apart from the consideration of the other evidence and rendered one verdict on the guilt or innocence of the defendant. In holding this not permissible the court in Jackson v. Denno said: “As we have already said, Jackson is entitled to a reliable resolution of these evidentiaiy conflicts. If this case were here upon direct review of Jackson’s conviction, we could not proceed with review on the assumption that these disputes had been resolved in favor of the State for as we have held we are not only unable to tell how the jury resolved these matters but even if the jury did resolve them against Jackson, its findings were infected with impermissible considerations and accordingly cannot be controlling here. Cf. Rogers v. Richmond, supra. Likewise, a federal habeas corpus court, in the face of the unreliable state court procedure, would not be justified in disposing of the petition solely upon the basis of the undisputed portions of the record.” P.392.
As to the disposition of the case, I would follow the procedure suggested in Jackson v. Denno, viz., reverse the trial court with direction that it impanel a jury, as required in a capital felony case, for the sole purpose of determining whether the alleged confession was or was not voluntarily given, and if the evidence makes a prima facie case of being voluntary to admit it for consideration of the jury and submit the question of voluntariness, with proper instructions, to the jury, if the jury finds that it was voluntarily given the judgment denying a new trial be affirmed, but if either the judge or the jury finds it was not voluntarily given, the judgment denying a new trial be reversed. See Code § 6-1610. Compare Wilson v. State, 173 Ga. 275 (5e) ( 160 SE 319 ).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9566662. Public record. Not legal advice.