Birdsong, Judge,
dissenting.
Though I am in full agreement with Division 1 of the majority opinion as to the sufficiency of the evidence, I must reluctantly enter my dissent as to the conclusion reached in the second division relating to the burden of proof concerning the voluntariness of the juvenile’s confession.
The state’s total evidence concerning voluntariness is shown in the transcript as follows: “Q. Was this statement made voluntarily by Mr. Thomas? A. Yes, sir, it was. Q. Was he threatened in any way? A. No, sir, he wasn’t. Q. Was he offered any inducement or reward? Q. No, sir, none at all. Q. Did either he or his mother, Mrs. Thomas, raise any objection to the statement? A. No, sir.”
Thereafter the following colloquy occurred:
“COURT: In other words, you are questioning the validity of the statement?
“[COUNSEL]: Absolutely.
“COURT: Okay, at that point in time, gentlemen, it’s up to him to prove that it was not freely and voluntarily taken . . . it’s up to [defendant] now to prove that it was not freely and voluntarily taken as I understand the rules.”
Thereafter the defense called witnesses to show lack of voluntariness followed by rebuttal by the state. The trial court in admitting the statement said merely: “Y’all through on the admissibility stand. I’m going to let it in. Your objections are noted for the record.”
It is clearly the law of this state as well as of this country that the burden always lies with the state to establish by at least a preponderance of the evidence that the statement of the defendant was voluntarily taken. See Lego v. Twomey, 404 U. S. 477 (92 SC 619, 30 LE2d 618); High v. State, 233 Ga. 153, 154 (210 SE2d 673). That burden can never shift. The legalism is recognized that once the state has shown voluntariness, the burden of going forward to create a question of fact may revert to the defendant. However, this can never *476shift the burden placed upon the state which burden is mandated by constitutional criteria. See Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694). Considering the statements of the trial court and the modes of proof followed, it seems incontrovertible that the trial court required the defendant to show lack of voluntariness to a preponderance rather than requiring the state to show voluntariness. While the state argues that the evidence shows sufficiently that the statement met constitutional standards of voluntariness and thus the erroneous procedure was harmless, we should not speculate as to what constituted the trial court’s understanding of the law of voluntariness. The court did not state its understanding to be that the defendant must raise a doubt as to voluntariness, nor put the state’s offer of voluntariness into question. Taking the language used at its face value, necessarily one must ignore its plain meaning that the trial court believed the defendant had the burden of proving involuntariness. To reach the conclusion reached by the majority, one must “read between the lines” and speculate as to and assign a hidden meaning of the court’s plain language. Moreover, it is not a question of whether the state could and did satisfy its burden (parenthetically we note the trial court curiously did not require the state to establish the voluntariness of the confession by the usual Miranda criteria), the error is that the trial court by its plain language placed that burden upon the defendant and for all that is apparent, allowed the statement into evidence solely because the defendant did not satisfy the court the statement was involuntary. This apparent erroneous shifting of the burden of proof (based upon an erroneous conclusion of law — see Marathon Oil Co. v. Hollis, 167 Ga. App. 48 (305 SE2d 864); Azar-Beard & Assoc. v. Wallace, 146 Ga. App. 671 (4) (247 SE2d 154)) in so crucial a matter requires that V. T.’s guilt or innocence be determined at a trial not so infected. LaRue v. State, 137 Ga. App. 762 (224 SE2d 837). To do less is to weaken the constitutional provisions designed to protect all citizens, the guilty as well as the innocent. The precedents of our legal system must be jealously guarded by this court and where doubt exists as to the legality of a constitutional procedure, I believe this court is duty bound to allow that doubt to redound to the benefit of the criminal defendant. Accordingly, I would reverse the judgment of conviction.
I respectfully dissent.