For reversal of his first degree murder conviction, appellant Charles Walker contends that the trial court erred in failing to declare a mistrial after commenting on the evidence and in failing to permit the jury to pass on the voluntariness of a confession.
*677The record discloses that during the direct examination of Officer Larry Dill the State, as a prelude to the introduction of a confession, sought to introduce a “waiver of rights form” signed by appellant. After the trial court overruled appellant’s objection thereto, the following occurred:
“THE COURT:
I might make this explanation to you, ladies and gentlemen. While you were in the jury room, outside the courtroom here, I heard all of the evidence that the State had to offer on the voluntariness of this statement and the rights form, and a certain drawing that he made, and it used to be I had to submit the question of voluntariness to the jury; but, the last two or three years ago, I think it was in 1969, the Legislature passed an Act that I should pass on the voluntariness of it, so I have held that this confession—
“MR. TUCKER:
(Interposing) Your Honor, may we approach the bench just a moment?
“THE COURT:
Yes, Sir.
[At this time, counsel for the State and the defendant approached the bench and conferred with the Court, out of hearing of the jury and the court reporter, after which the following proceedings occurred:]
“THE COURT:
I am just telling you what the law is. The question of the voluntariness of the statement won’t be up to you. The only question that will be submitted to you is the truthfulness of it and whether or not this man made it. I have already passed on the voluntariness of it, and he has already saved all of his exceptions.
“MR. HOWARD:
If the Court please, at this time I respectfully request *678a mistrial in this case for the reason that the Court has commented on the evidence.
“THE COURT:
Overruled.”
Our Constitution Article 7 § 23 provides:
“Judges shall not charge juries with regard to matters of fact, but shall declare the law, and in jury trials shall reduce their charge or instructions to writing on the request of either party.”
In construing this provision in Sharp v. State, 51 Ark. 147, 10 S.W. 228 (1888), we said:
“In all trials the judge should preside with impartiality. In jury trials, especially, he ought to be cautious and circumspect in his language and conduct before the jury. He should not express or intimate an opinion as to the credibility of a witness or as to controverted facts. For the jury are the sole judges of fact and the credibility of witnesses; and the constitution expressly prohibits the judge from charging them as to the facts. The manifest object of this prohibition was to give to the parties to the trial the full benefit of the judgment of the jury, as to facts, unbiased and unaffected by the opinion of judges. Any expression or intimation of an opinion by the judge as to questions of fact or the credibility of witness'es necessary for them to decide in order for them to render a verdict would tend to deprive one or more of the parties of the benefits guaranteed by the constitution, and would be a palpable violation of the organic law of the State.”
Other jurisdictions in considering the question, State v. Barber, 268 N.C. 609, 151 S.W. 2d 51 (1966), and United States v. Fayette, 388 F. 2d 728 (1968), hold that the findings of the trial court on the issue of voluntariness should not be referred to in the presence of the jury. Of course the voluntariness of the confession would *679also affect its weight and credibility. Consequently, the trial court’s statements amounted to a comment on the weight of the evidence, and under the circumstances shown above a mistrial should have been granted.
Appellant’s other argument has to do with the trial court’s refusal to submit the voluntariness of appellant’s confession to the jury. On this issue the trial court did not err. Following Jackson v. Denno, 378 U.S. 368, 12 L. ed. 908, 84 Sup. Ct. 1774, 1 ALR 3d 1205 (1964), the General Assembly adopted Act 489 of 1965, [Ark. Stat. Ann. § 43-2105 (Supp. 1971)], which provides:
“Issues 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 voluntariness of the confession out of the presence of the jury and it shall be the court’s duty before admitting said confession into evidence to determine by a preponderance of the evidence that the same has been made voluntarily.”
We construe this statute as adopting the so-called “Wig-more” or “Orthodox” rule. See 29 Am. Jur. 2d Evidence § 587. By this rule the trial court determines the voluntariness of the confession — i.e. whether the confession was obtained contrary to the constitutional right against self-incrimination. While this finding by the trial court may affect the ultimate finding of guilt or innocence, it has only to do with the admissibility of the evidence and nothing to do with the weight and credibility to be given to it. The finding on this issue by the trial court occurs only because of the evidentiary rule that excludes evidence obtained contrary to the right against self-incrimination. Of course this finding in no way affects the constitutional right of a defendant to have his case heard on the merits by a jury.
The “Wigmore” rule also offers the added advantage that such hearings can be held at pretrial conferences *680and before the jury is empaneled — thus allowing the trial courts to make a better utilization of its time and the time that the jurors are taken from their respective occupations.
In both Brown v. State, 239 Ark. 909, 395 S.W. 2d 344 (1965) and Hall v. State, 242 Ark. 201, 412 S.W. 2d 603 (1967), we said that a trial court did not err in permitting the jury to pass on the voluntariness of a confession, but as pointed out in a footnote in Brown, supra, it is not necessary that the issue be submitted to the jury.
Reversed and remanded.
Fogleman, J., dissents in part.