concurrence">Ed. F. McFaddin, Associate Justice,

concurring. I concur in the result reached by the Majority, but there are certain implications contained in the Majority opinion from which I desire to disassociate myself. It is true that some of the appellant’s testimony, if given unlimited meaning, might be taken to say that he was questioned continuously for long hours; and it is because such testimony is unexplained that I vote for a reversal. However, I think it is only fair to make certain observations for the benefit of the Bench and Bar.

We have a rule of long standing that in a felony case this Court considers every assignment contained in the Motion for New Trial, even though the assignment is not argued on appeal. In Martin v. State, 206 Ark. 151, 174 S. W. 2d 242, we stated and applied this rule and cited the cases of long standing; and it is because of this rule that the appellant is winning a reversal in the case at bar. The Motion for New Trial in the present case had seven assignments, and one of these related to the defendant’s motion to exclude the confession from the consideration of the jury. We have to consider this assignment even though it was not argued on appeal.

The appellant was represented in the Trial Court and on appeal by an experienced attorney. If that attorney had thought that his client had been questioned continuously for a long period of time, I am confident that the point would have been vigorously urged on appeal. So the loose statement contained in the appellant’s testimony about the time for which he was questioned went unnoticed by bis counsel, as well as by tbe State, and, therefore, remained unexplained. On this the appellant is winning a windfall reversal. On a retrial, the continuity of the questioning will be a matter that the Court and jury may consider in view of the reversal now made.

No one will sanction continuous questioning for a long period of time, but the Majority Opinion might be considered as criticizing the Trial Court and the officers on a point which the appellant’s experienced attorney did not even argue; and so, while I agree with the result in the case, I think some explanation is due in fairness to the Trial Court, the officers, the appellant’s attorney, and all others.

Carretón Harris, Chief Justice,

dissenting. I dissent to the reversal because I do not interpret the testimony in the same manner as the Majority. The Majority state:

“The undisputed evidence shows that the defendant was questioned almost continuously for a period of 52 hours before giving the first confession.”

Further:

“ * * * the record shows that the facts previously mentioned are undisputed and the testimony of the officers amounted to no more than conclusions because they simply testified that no force or duress was exercised, while admitting the continuous interrogation of the suspect.”

I find nothing in the record, other than the testimony of the appellant, which shows continuous questioning. It is true that in certain instances, replies to questions asked on cross-examination, might possibly leave an impression that appellant was continuously interrogated. For instance, during the cross-examination of Detective Sergeant Bentley:

“Q. Didn’t you apply some rather hypnotic spell over this ignorant Negro boy to get him to do that?

A. No, sir.

* * ^ *

Q. You just think he said that, and wrote all that out freely.

A. Yes, sir.

Q. After three days and three nights of quizzing?

A. From the evening of the 16th, sir.” (The confession was taken on the evening of the 18th.)

Further, during re-cross examination of the same witness:

‘ ‘ Q. Well, you didn’t let him out anywhere ?

A. No, sir.

Q. You didn’t let him talk to counsel?1

A. No, sir.

Q. Or anybody? You kept him there in your custody?

A. He was either there or in the city jail all the time.”

This testimony to me simply means that Binns was questioned off and on for a period of three days, but it does not convey to me the idea that Binns was being continuously interrogated. In other words, he was not being questioned in “relays.” I take the testimony to mean that Binns would be questioned for awhile, and then taken back to his cell; on other occasions, he would be again brought out and questioned, and again returned to the cell, all over a period of three days. The Majority say:

“The appellant testified that he had no sleep during the entire 57 hour period. This testimony might ordinarily be considered as disputed but when the officers admitted the continuous inquisition, they impliedly admitted that defendant had no sleep.”

As stated, there is no testimony by the officers that I would interpret as an admission, implied or otherwise, that the defendant had no sleep. The testimony definitely establishes that Bentley was present on each occasion when appellant was questioned, and if Binns was exhausted from lack of sleep — it would appear that Bentley should have been likewise exhausted. Detective Bentley is indeed a zealous officer if he will go without sleep for 57 hours in order to interrogate a prisoner!

Counsel for appellant subjected the officers to a vigorous cross-examination, and if it is so obvious that appellant had been consistently questioned without let-up for 52 hours, I am at loss to understand why appellant’s counsel did not argue this matter in his brief. It is only mentioned as a point — but not argued. I think that even officers in small rural communities know that a confession, obtained in the manner set out in the Majority opinion, would be entirely inadmissible; I am of the opinion that members of the Little Rock Police Department, who have been with the department for eight years (as was Bentley) would likewise know this fact. Not only that, but the proof shows that Agent Tom Webb of the FBI was present most of the time during the periods of interrogation. Certainly, these agents are well trained in matters of law before assuming their duties.

Despite defense counsel’s reference about the “ignorant Negro” on cross-examination, the record reflects that such is not the case. Binns cannot be placed in that category. He attended two years at Philander Smith, and his testimony leaves no doubt but that he is moderately well educated.

Of course, Binns testified that he was deprived of sleep, though his complaint seems to deal mostly with failure to obtain cigarettes, “couldn’t eat the food”, couldn’t take a bath, and the fact that he was not permitted to call an attorney. From his testimony:

“Yes, sir, now, on the night of the 18th, I said, ‘Mr. Bentley, I am tired and I am weary. Would you please release me? You have nothing against me. I have told you for three days I don’t know who did it. I had nothing to do with it,’ and he said, ‘Well, yon are going to give me a statement before yon leave here. Yon are not going to leave before yon do.’ I said, ‘Please give me a cigarette, I am nervous.’ He said, ‘Well, here,’ and he had a filter and I don’t like filter cigarettes and I broke it off. I said, ‘Well, is there any way I can buy a package of cigarettes?’ He said, ‘No, yon are not going to get any cigarettes.’ I said, ‘I haven’t been able to sleep naturally you accusing me of this 2 I haven’t had any cigarettes. You won’t let me buy any.’ ” ' '

The emphasized statement indicates to me that Binns ’ loss of sleep was due to worry over the charge, rather than continuous interrogation.

In addition to stating that he was forced to make the statement, appellant testified that he confessed because the officers were threatening to file charges against him because of obscene literature found in his automobile, and further threatening to file charges against his girl friend.

‘ ‘ They threatened to bring my girl friend in and lay some charges against her. I said, ‘To protect her, and she is innocent and Monts, then I will give you a statement if you will just let me call an attorney, let me have some cigarettes and release me so I can go home and bathe,’ and he said, ‘O.K.’ That is when I began to giving him statements slowly.”

Of course, it is not unusual for one who has made a confession to later claim that it was obtained through coercion or duress.

Since I do not agree with the majority opinion in stating that the facts upon which the reversal is based are undisputed, I am of the opinion that the question of whether the confessions were made voluntarily was a matter for the jury to determine. We have so held. In McClellan v. State, 203 Ark. 386, 156 S. W. 2d 800, this Court said:

4 4 In such cases the practice approved by us, which was followed in the instant case, is for the Court to hear the testimony in the absence of the jury as to the circumstances under which the confession was given, and if there is a substantial question as to whether it was freely and voluntarily made, to submit that question of fact to the jury, after admonishing the jury to disregard the confession unless it was found to have been voluntarily made.”

The Circuit Judge in this case gave a rather lengthy instruction to the jury relative to a confession, as follows :

"There is evidence here that the defendant made a confession. Before you can consider any confession as evidence, you must find: (1) That he did make a confession. (2) That the confession he did make was the one you heard on the witness stand. (3) That when he made it he told the truth. (4) That it was voluntarily made.

"In order for a confession to be voluntary you must find that it was made without hope of reward or fear of punishment. The basis of the statement that a confession must be voluntary is that the Constitution of the State says no person shall ever be compelled to give evidence against himself.

"The presumption of the law is that any confession made by a defendant, when he is in custody of officers, whether these officers be the Sheriff, Detectives, Policemen, the Prosecuting Attorney, or any other officer, is voluntary and incompetent and cannot be considered by you.

"The effect of that presumption is to place the burden of proof on the State to prove by a preponderance of the testimony that the confession was voluntary. They must overcome this presumption of law to your satisfaction and show that the confession was voluntary. If you find that the defendant, during the time of his custody was under the influence of officers at any time such as would make any statement or confession involuntary, the law presumes that this influence continues and makes all other statements or confessions made by him thereafter incompetent until the State shows by a preponderance of the testimony that this influence has been removed.

“Before any statements or admissions made by the defendant can be used against him as evidence, such statements or admissions must have been free and voluntary and which such statements or admissions, if any, are induced by threats of harm, promise of favor, a show of violence, a putting of fear or inquisitory methods are used to extort a confession, then the same is attributed to such influence and cannot be used against the defendant. ’ ’

This was a proper instruction, and under our holdings, I am of the opinion that it was within the province of the jury to say whether or not the confession was voluntary.

I respectfully dissent.

Bentley stated that Binns did not ask for counsel.

Emphasis supplied.

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