¶1filed the following dissenting opinion.
¶2As I did not dissent in Prescoe v. State, 231 Md. 486, and the majority opinion herein states that the ruling in that case controls the result herein, it necessarily means that to me the cases are distinguishable.
¶3In the very recent case of Haynes v. Washington, 373 U.S. 503, the Supreme Court reaffirmed the principle that the test in each case of the admissibility of a confession is whether “the de*327fendant’s will was overborne at the time he confessed,” citing Lynumn v. Illinois, 372 U.S. 528; and the Court went on to state further that “the true test of admissibility is that the confession is made freely, voluntarily and without compulsion or inducement of any sort,” citing Wilson v. United States, 162 U.S. 613 and Bram v. United States, 168 U.S. 532. The Court then held that the undisputed testimony showed that the confession admitted therein was obtained “under a totality of circumstances evidencing an involuntary written admission of guilt.” This case, I think, was controlling in Prescoe, wherein the State conceded the illegality of the arrest and the appellant flauntingly admitted that the confession was freely and voluntarily made, but contended that it could not be admitted in evidence against him on the sole ground that it was made while he was being illegally detained. I concede that the phrase “under a totality of circumstances evidencing an involuntary … admission of guilt” is not, as yet, capable of precise definition or application, and probably, is not intended to be. This, of course, means that the facts and surrounding circumstances of each case must control.
¶4In the instant case, the State conceded that the arrest was illegal (the sale to the officer took place a week before the arrest; it would have been a very simple matter to have obtained an arrest warrant). The charge was a misdemeanor. And the confession was made very shortly after the arrest. In Wong Sun v. United States, 371 U.S. 471, a statement made by Toy shortly after his unlawful arrest was held to have been wrongfully admitted, because it was the “fruit” of official illegality. In the case at bar, there is no concessum that the confession was freely and voluntarily made as in Prescoe; in fact, the usual questions concerning threats, promises or inducements, Cox v. State, 192 Md. 525, 536, were not propounded by the State. Yet, the majority hold that the confession was spontaneously and voluntarily made. I think the testimony shows the confession to be very similar to that of Toy; therefore, I do not believe it should have been admitted.