¶1dissenting.
¶2I cannot agree that the trial judge committed reversible error in this case.
¶3In my opinion, the trial judge found that defendant confessed freely and voluntarily. Had he not done so, it was his duty to suppress the confession and exclude from the jury any consideration of voluntariness or truthfulness.
¶4It seems to me that the majority places undue significance upon the trial judge’s addition of the phrase “at the present time,” to his statement overruling the motion to exclude the confession.
¶5I agree that the charge allowed the jury to reconsider the voluntariness of the confession, thus adhering to the “Massachusetts” rule rather than the “orthodox” rule. I agree that in Tennessee we have had, and should continue to adhere to, the “orthodox” rule.
¶6The United States Supreme Court has approved the “Massachusetts” rule as well as the “orthodox” rule. I do not believe that Court intended the expression “unmistakable clarity,” used in Sims v. Georgia, supra, with regard to the trial judge’s independent determination of the voluntariness, to be so narrowly and rigidly construed. That observation is based upon a careful reading of both Jackson v. Denno, supra, and Sims, and particularly the following from the latter case:
“Furthermore, Georgia’s highest court, in finding that its rule satisfied the requirements of Jackson, overlooked the fact that the same safeguards offered by the Georgia practice were present in the procedures of New York in Jackson and *953were rejected by this Court. A constitutional rule was laid down in that case that a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given. The rule allows the jury, if it so chooses, to give absolutely no weight to the confession in determining the guilt or innocence of the defendant but it is not for the jury to make the primary determination of voluntariness. Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with unmistakable clarity. Here there has been absolutely no ruling on that issue and it is therefore impossible to know whether the judge thought the confession voluntary or if the jury considered it as such in its determination of guilt.” 87 S.Ct. at 643.
¶7But, if it be conceded that the trial judge failed to comply with the dictates of Sims, reversal of this case is unwarranted for the reasons expressed in the quotes from Shafer v. State, supra, and Beaver v. State, supra, in the majority opinion.
¶8Lack of prejudice to the defendant seems to be conceded by the majority, but it is said, that, if the defendant was not prejudiced, the State was. No assignment of error has been made by the State on the basis that it was prejudiced. To the contrary, it asserts that the error was in favor of defendant and that it was harmless. It is fundamental that a defendant is not prejudiced by error in his favor. Sullivan v. State, 513 S.W.2d 152 (Tenn.Cr.App.1974). Also see State v. Collins, 528 S.W.2d 814 (Tenn.1975) and cases cited at 819.
¶9However, it appears more likely that the majority reverses because Shafer v. State, supra, and Beaver v. State, supra, held a departure from the “orthodox” rule to be harmless error and, implicitly, we must never do so again, to insure strict compliance with that rule.
¶10Both defendant and the State have had a fair trial. I am convinced that the technical error in applying the “Massachusetts” rule was harmless, beyond a reasonable doubt and to a moral certainty.
¶11I would reverse the Court of Criminal Appeals and reinstate the judgment of the trial court finding defendant guilty of murder in the first degree and sentencing him to life imprisonment.
¶12I am authorized to say that Justice Har-bison joins in this dissent.