{
  "id": 8724109,
  "name": "Charles ESTEP and Paul CRYAR v. STATE of Arkansas",
  "name_abbreviation": "Estep v. State",
  "decision_date": "1968-05-13",
  "docket_number": "5332",
  "first_page": "843",
  "last_page": "846",
  "citations": [
    {
      "type": "official",
      "cite": "244 Ark. 843"
    },
    {
      "type": "parallel",
      "cite": "427 S.W.2d 535"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
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    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "240 Ark. 608",
      "category": "reporters:state",
      "reporter": "Ark.",
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      "opinion_index": 0,
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    {
      "cite": "389 U. S. 31",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        11333722
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      "weight": 3,
      "year": 1967,
      "opinion_index": 1,
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    {
      "cite": "378 U. S. 368",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        6166505
      ],
      "weight": 2,
      "year": 1964,
      "opinion_index": 1,
      "case_paths": [
        "/us/378/0368-01"
      ]
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  "last_updated": "2023-07-14T21:22:25.068679+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "FoglemaN, J., concurs."
    ],
    "parties": [
      "Charles ESTEP and Paul CRYAR v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Paul Ward, Justice.\nThis is an appeal by Charles Estep and Paul Cryar from a conviction for burglary and grand larceny.\nWhen appellants were arraigned in circuit court on August 18, 1967 they entered pleas of not guilty, and the court appointed Attorney Carl Stewart to defend them. The case was then continued and set for trial on September 5, 1965.\nOn the last mentioned date the following occurred: (a) Lawrence Hamilton who was also charged along with appellants, and who was sixteen years old, pleaded guilty and was sent to the Arkansas Industrial School. He is not involved here, (b) Appellants asked that they be furnished a copy of a confession of guilt signed by Estep on August 18, 1967, and that the hearing be set for a later date. The trial court granted both requests, and set the hearing for September 28, 1967.\nDuring the trial the State offered to introduce in evidence the previously mentioned confession of Estep, which appears in the record as the State\u2019s Exhibit No. 1. At this point appellants objected to the introduction of the exhibit, but were overruled. Then appellants noted their exceptions to the ruling of the court, and further stated: \u201cAnd we ask, and I make this motion out of the presence of the jury, that it be ascertained by investigation that the testimony of these witnesses, whether or not this was a free and voluntary statement\u201d. This motion was overruled by the court, and appellants again saved their exceptions. In overruling appellants\u2019 exceptions the court said: \u201cIts a question of fact. The jury will consider all of the facts. Proceed.\u201d The exhibit was introduced in evidence, and the trial was continued. The trial resulted in a jury verdict of guilty on both counts, and sentences were fixed at not more than five years \u2014 to run concurrently.\nFor a reversal appellants urge four separate points. We will, however, discuss at any length only one point.\nWe have concluded the trial court erred in failing to determine, out of the presence of the jury, the vol-untariness of Estep\u2019s confession. In reaching this con-elusion we deem it unnecessary to discuss the decision of the U. S. Supreme Court cited by both parties, because we think Ark. Stat. Ann. \u00a7 43-2105 (Supp. 1967) is controlling in this case. It reads:\n\u201cIssues of fact shall be tried by a jury, provided that the determination of fact concerning the admissibility of a confession shall be made by the court when the issue is raised by the defendant; that the trial court shall hear the evidence concerning the admissibility and the volun-tariness of the confession out of the presence of the jury and it shall be the court\u2019s duty before admitting said confession into evidence to determine by a preponderance of the evidence that the same has been made voluntarily.\u201d\nThe above section was cited and approved in Mullins v. State, 240 Ark. 608, 401 S. W. 2d 9.\nIn view of the above, the case must be reversed and remanded for a new trial.\nWe have examined carefully the other alleged errors and find no merit in any of them.\nReversed and remanded.\nFoglemaN, J., concurs.",
        "type": "majority",
        "author": "Paul Ward, Justice."
      },
      {
        "text": "John A. Fogleman, Justice,\nconcurring. I concur because it appears that the trial judge never made a ruling that the confession was voluntary as required by Jackson v. Denno, 378 U. S. 368, 84 8. Ct. 1774, 12 L. Ed. 2d 908 (1964), and Ark. Stat. Ann. \u00a7 43-2105 (Supp. 1967). On the other hand, he seems to have left the determination of the question of voluntariness entirely to the jury. I agree that this was reversible error.\nIf he had held the confession voluntary and not left the determination entirely to the jury, I feel that his action would not have been prejudicial. Where a confession is held voluntary and there is no showing that a hearing thereon in the presence of the jury was inadequate or had any other unfair consequences, there is net necessarily any prejudice to the defendant. See Pinto v. Pierce, 389 U. S. 31, 88 S. Ct. 192 (1967). 19 L. Ed. 2d 31 (1967). While objection was made and a hearing outside the presence of the jury was requested here, the defendant did not avail himself of the opportunity to testify or to offer any testimony on this question when the trial judge recessed the hearing, excused the jury and gave defendant that opportunity. Had the trial judge then ruled the confession voluntary, I cannot see how there would have been any prejudice to the defendant.",
        "type": "concurrence",
        "author": "John A. Fogleman, Justice,"
      }
    ],
    "attorneys": [
      "Carl Stewart and Jeff Duty, for appellants.",
      "Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Charles ESTEP and Paul CRYAR v. STATE of Arkansas\n5332\n427 S. W. 2d 535\nOpinion delivered May 13, 1968\nCarl Stewart and Jeff Duty, for appellants.\nJoe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee."
  },
  "file_name": "0843-01",
  "first_page_order": 867,
  "last_page_order": 870
}