When objection made to admissibility of confession, proper procedure is to conduct hearing outside presence of jury to determine admissibility.
How later courts described this case
- When objection made to admissibility of confession, proper procedure is to conduct hearing outside presence of jury to determine admissibility.
Written by the judges who cited it.
The opinion
OPINION ON PETITION TO REHEAR
HENRY, Justice.
The State has petitioned us to rehear this case, and to reconsider the opinion which we rendered in the same.
The State’s petition presents two issues for our consideration.
First, the State renews its contention that the trial judge made a final determination of the admissibility of Pursley’s confession with “unmistakable clarity,” citing several portions of the Bill of Exceptions and of the Wayside Bill of Exceptions in support thereof. In response, we can only reiterate what we stated in our Opinion: It is our considered belief that the judge’s statements at trial, and in particular his charge to the jury, indicate that he abdicated his responsibility to make an independent and final determination of the admissibility of the confession. Such an abdication is clearly improper, under both the “orthodox” and the “Massachusetts” rules.
Secondly, the State asks us to reconsider our opinion to the extent that it is based on a solicitude for the State’s interests, in that they do not believe that the relief granted the defendant — a new trial — will prove of benefit to them in this instance. The State’s request is based on a misapprehension of the reasons for our decision. Although we believe that, as a general rule, departures from the “orthodox” rule will tend to be prejudicial to the State, that concern does not motivate our holding in the present ease. We affirmed the judgment of the Court of Criminal Appeals because we believe that Pursley was preju *954 diced by the failure of the trial judge to make an independent determination of the question of admissibility.
For the reasons set forth above, the petition is denied.
COOPER, C. J., and BROCK, J., concur.
FONES and HARBISON, JJ., dissent.