The opinion
COLEMAN, Justice
(dissenting) :
As I understand the opinion of the Court of Appeals, the judgment was reversed because the trial court denied defendant’s request for voir dire hearing and ruling by the trial court, outside the presence of the jury, to determine whether defendant’s rifle and cartridges were admissible into evidence. As to this holding, I am not persuaded that a prima facie showing of error by the Court of Appeals has been made.
Apparently, the gun and ammunition are evidence which tends to incriminate the defendant. Defendant’s request for a “voir dire” hearing to determine the admissibility of the gun is similar to a request for a preliminary hearing to determine the admissibility of a confession taken from defendant. The gun was taken from defendant and a confession is always taken from defendant, sometimes lawfully, sometimes otherwise. The reason for a preliminary hearing with respect to a confession is to permit the court to determine, outside the presence of the jury, whether the confes *171 sion was taken from the defendant lawfully. The same reason operates to require that preliminary examination be made to determine whether the gun was lawfully taken from defendant. In either case, if the taking was unlawful, the evidence should not be permitted to go to the jury.
If a confession is unlawfully taken from defendant and presented to the jury, defendant’s constitutional right not to be compelled to give evidence against himself is violated. If the gun was taken by means of an unreasonable search and seizure, defendant’s constitutional right to be secure in his person and possessions is violated. As it seems to me, if defendant is entitled to make a preliminary inquiry as to the voluntariness or lawfulness of the manner of obtaining a confession, the defendant is also entitled to make a preliminary inquiry as to the lawfulness of the manner of obtaining the gun and ammunition.
It may be that the ancient term, “voir dire”, is not a propel', technical designation of the preliminary examination which defendant was asking for. I do not think, however, that this court is now committed, if it ever was, to deciding cases by requiring use of a magic word when the meaning of the language used is clear. It is clear that counsel for defendant was asking “to question the witness on voir dire now at this point.”
The Court of Appeals cites our opinion on original deliverance in Hubbard v. State, 283 Ala. 183 , 215 So.2d 261 . On second rehearing, this court affirmed the conviction in Hubbard , and the latest opinion of this court in Hubbard does not follow the opinion on original deliverance. In Hubbard , however, the issue of defendant’s right to a preliminary hearing, outside the presence of the jury, to determine the admissibility of evidence was not presented.
I would quash the writ as improvidently granted.
SIMPSON, J., concurs.