who should on request examine into the matter out of the presence and hearing of the jury. Where the evidence as to the voluntary character of the confession is conflicting, the question may be left to the jury under judicial instructions that if on all the evidence they find that it was not voluntary they should reject it.2 The burden of proof to show that the accused has been unduly influenced is upon the defense. A refusal to allow the counsel for the prisoner to cross-examine the witness upon this point is reversible error.* It is extremely difficult to enunciate any general rule by which may be measured the amount or degree of duress or improper influence which will destroy the voluntary character of the confession. The mere fact that the accused was in charge of an armed police official or a sheriff, or was handcuffed, or tied, or in prison,' will not alone render his confession involuntary. Threats or promises of immunity which would have no effect whatever upon a well-balanced, determined, courageous and experienced man would make a very deep impression on a feeble woman or upon one of weaker intellect or will power, or on a person of immature years and lacking in experience. State v. id. 277; Com. v. Morey, 1 Gray (Mass.), 461; Biscoe v. State, 67 Md. 6; United States v. Nott, 1 McLean, 499; Moorman, 27 S. C. 22; Murray v. State, 25 Fla. 528. Ellis v. State, 65 Miss. 44; Carter v. State, 37 Tex. 362. Thomas v. State, 84 Ga. 613; 10 S. E. Rep. 1016; Carr v. State, 10 S. E. Rep. 626; 84 Ga. 250; People v. Howes (Mich., 1890), 45 N. W. Rep. Piper, 120 Mass. 185; 961; Com. v. 4 State v. Miller, 42 La. Ann. 186. The voluntary character of the statement should be shown before its admission, though if this proof is omitted it may be introduced after the con fession is received. Smith v. State, 15 S. E. Rep. 675; 88 Ga. 627. 5 State v. Whitfield, 109 N. C. 876. 6 State v. Rogers (N. C., 1893), 17 S. E. Rep. 297. 7 People v. Gastro, 75 Mich. 127; Com. v. Smith, 119 Mass. 305; People v. Rogers, 18 N. Y. 9; Cox v. People, People v. Cassidy, 14 N. Y. S. 349. People v. Cassiday, 133 N. Y. 612; State v. Howard, 14 S. E. Rep. 481. Contra, People v. Sweetland, 77 Mich. 53; 43 N. W. Rep. 779; Nicholson v. State, 38 Md. 140; Barnes v. State, 36 Tex. 356; People v. Soto, 49 Cal. 69; Johnson v. State, 30 La. Ann. 881. McQueen v. State, 10 S. Rep. 433; 94 Ala. 50; Hornsby v. State, 10 S. Rep. 522; 94 Ala. 50; State v. Coella, 3 Wash. St. 99; Anderson v. State, 25 Neb. 550; State v. Carlisle, 57 Mo. 102. 9 See Hoober v. State, 81 Ala. 51; 1 Greenl. on Evid., § 219. The statement that a confession extorted by threats or promises of immunity is not voluntary, and is inadmissible, is not difficult to understand. The main difficulty lies in the ascertainment of what language used towards the prisoner would constitute a threat or promise. So where defendant voluntarily testified before the grand jury his testimony is admissible against him.2 In any event, if it shall appear to the court that the will of the prisoner has been overcome, it matters not whether it be by threats of harm, promises of favor, the fear of detection, or by flattery or trickery, it is the duty of the judge to exclude the confession.3 $90. Confessions, when voluntary - Inducements offered. When a prisoner is first cautioned that what he is about to say will be taken down and may be used against him his confession is not thereby rendered involuntary. On the other 1 Thompson's Case, 1 Leach, 325; Cass' Case, id. 328: Com. v. Harman, 4 Barr, 269; Boyd v. State, 2 Humph. 37; Dillon's Case, 4 Dall. 116; Reg. v. Garner, 12 Jur. 944; Canada v. State (Tex., 1890), 16 S. W. Rep. 341. The testimony of the accused voluntarily given as a witness in a prior trial of another person for the crime with which the witness is now charged may be used against him. See post, $$ 320, 321; Burnett v. State, 87 Ga. 622; People v. Mitchell, 94 Cal. 550; People v. Gallagher, 75 Mich. 512; State v. Glahn, 97 Mo. 579. 2 State v. Carroll, 51 N. W. Rep. 1159; State v. Coffee, 56 Conn. 399. 3 Regina v. Baldy, 16 Jur. 599; Bubster v. State, 33 Neb. 663; 50 N. W. Rep. 953; Lauderdale v. State (Tex., 1892), 19 S. W. Rep. 679; Rex v. Kingston, 4 C. & P. 387; Reg. v. Jarvis, L. R. 1 C. C. R. (C. B.) 96; McClain v. Com., 110 Pa. St. 269. A promise that the accused will be used as a witness for the state (State v. Johnson, 30 La. Ann. 881), or that he will be helped if he confesses (State v. Von Sachs, 30 La. Ann. 942), or a declaration that a suspected person had better pay for what he had taken (Cook v. State (Tex., 1893), 22 S. W. Rep. 23), that he might as well own up, coupled with an accusation of theft (Smith v. State, 88 Ga. 627), a promise to get the accused out of the trouble (Searcy v. State, 28 Tex. App. 513; Clayton v. State, 31 Tex. Crim. App. 489), or a threat to kill (Bush v. Com. (Ky., 1892), 17 S. W. Rep. 330), advice that to own up will save defendant from a heavy sentence (Searles v. State, 6 Ohio Cir. Ct. 331), that he ought to be hung (State v. Carson, 36 S. C. 524), a promise by the district attorney that he will not be prosecuted (Neely v. State, 27 Tex. App. 324), to tell the truth and have no more trouble (Biscoe v. State, 67 Md. 6),— have all been held enough to render a confession inadmissible because involuntary. 4 Reg. v. Holmes, 1 C. &IK. 248; Reg. v. Atwood, 5 Cox C. C. 322; Rizzolo v. Com., 126 Pa. St. 54; United States v. Kirkwood, 5 Utah, 123; Maples v. State, 3 Heisk. 408; Rex v. Baldry, 2 Den. C. C. 430. See post, § 92. hand, while such a warning is advisable on grounds of humanity and justice, it is not, in the absence of statute, an absolute prerequisite to be complied with before the confession will be valid.' If the accused, on being apprehended, has been threatened or promised immunity in order to obtain a confession, and if subsequently, when these means are found ineffectual, the promise or threat has been withdrawn so that he is no longer influenced, his confession then made will be deemed to be free and voluntary. Even if a confession is involuntary, no valid reason exists why another later and wholly distinct, voluntarily made to the same or to another person after the undue influence has ceased, should not be received. It has accordingly been held that where it is shown that the hopes or fears which were attendant upon the former confession no longer obtain, the later confession is admissible.3 § 91. Confession need not be spontaneous.- It is not necessary for a confession to be the spontaneous utterance of the accused. It will be received though it may have been ob-, tained solely by persistent questions put to him by officials I Woolfolk v. State, 85 Ga. 69; Regina v. Arnold, 8 C. & P. 622; Kirby v. State, 5 S. W. R. 165; 23 Tex. App. 13. Where by statute such a caution is required, a confession of one crime, made while defendant was in custody charged with another, is inadmissible on his trial for the former offense. Niederluck v. State, 21 Tex. App. 320. 2 Rex v. Clewes, 4 C. & P. 221; McAdory v. State, 62 Ala. 154; State v. Chambers, 39 Iowa, 179; Reg. v. Bate, 11 Cox C. C. 686; Walker v. State, Tex. App. 245; State v. Jones, 54 Mo. 478. 31 Greenl. on Evid., § 221, citing Guild Case, 5 Halst. 180: Roberts' Case, 1 Dev. 259, 264; Com. v. Harman, 4 Barr, 269. The improper influence under which the prior confession is made is presumed to continue until the contrary is shown (United States v. Chapman, 4 Am. Law Jour. 440; Murray v. State, 6 S. Rep. 498; Coffee v. State (Ala., 1891), 6 S. Rep. 493. See, also, post, § 321); and the evidence which will rebut the presumption of a continuance of the influence must be clear and satisfactory. Porter v. State, 55 Ala. 95; Com. v. Cullen, 111 Mass. 435; State v. Jones, 54 Mo. 478; State v. Lawhorne, 66 N. C. 638; Berry v. United States, 2 Colo. Terr. 186; Walker v. State, 7 Tex. App. 245; Kollenberger v. People, 9 Colo. 233; People v. Johnson, 41 Cal. 452. It is for the judge to say whether the presumption has been rebutted (Porter v. State, supra); and it has been held that the fact that the prisoner was cautioned that he need not speak is sufficient to rebut the presumption. Com. v. Ackert, 133 Mass. 402; Reg. v. Bate, 11 Cox C. C. 686. 41 Greenl. on Evid., § 229. or private persons, even where the questions by their form presuppose his guilt,' if in putting such assuming questions no unfair advantage amounting to duress is gained over him.2 In the absence of statutes rendering such communications privileged, statements made to a spiritual adviser are admissible against the prisoner.3 A voluntary confession is not inadmissible because made under a sworn promise of secrecy, or procured by the promise of some benefit having no connection with the crime confessed, as, for example, by a promise that the prisoner may see visitors or have his shackles removed, or be released from a rigorous confinement. So it has been held that a voluntary confession is not to be rejected because it was obtained by means of deception or artifice practiced on the prisoner if the inducement employed did not cause him to make an untrue statement. Thus, confessions procured by reason of the accused having been made drunken have been received. The authorities, however, are not harmonious, and in more recent cases it has been decided that confessions obtained by a person who, falsely representing himself to be an attorney at law, obtained the confidence of the prisoner,10 or by an officer who procured the intoxication of the prisoner," are not ad 1 Rex v. Wild, 1 Mood. Cr. Cas. 452. 2 McClain v. Com., 110 Pa. St. 259. A voluntary confession, otherwise admissible, will not be rejected because when made the accused was unlawfully imprisoned. Balbo v. People, 19 Hun (N. Y.), 424. 3 Rex v. Wild, 1 Mood. Cr. Cas. 452; Rex v. Court, 7 C. & P. 486. See post, § 177. 4 State v. Darnell, 1 Houst. C. C. (Del.) 321; Com. v. Knapp, 9 Pick. 496. See People, 5 Park. C. R. 547; Com. v. 5 State v. Wentworth, 37 N. H. 196; born v. Com. (Ky., 1893), 20 S. W. Rex v. Green, 6 C. & R. 655. 6 Rex v. Lloyd, 6 C. & P. 393. 7 State v. Tatro, 50 Vt. 483. 81 Greenl. on Evid., § 229; Rex v. Derrington, 2 C. & P. 418. 9 Lester v. State, 32 Ark. 727; Eskridge v. State, 25 Ala. 30; Jefferds v. Rep. 223. Cf. Stafford v. State, 55 10 People v. Stewart, 75 Mich. 21; Cotton v. State, 87 Ala. 875. 11 McCabe v. Com. (Pa., 1887), 8 Atl. Rep. 45. missible. But any person who overhears the remarks of the prisoner made to himself or to a person such as an attorney or spiritual adviser who is incompetent as a witness may testify to what he has heard. So a confession constituting a part of a prayer may be testified to by one who has overheard it, though he may not have heard the whole prayer; and a confession made to a fellow-prisoner in the erroneous belief that one criminal could not testify against another is not inadmissible.3 § 92. Preliminary examination.- The main objects of the preliminary examination of an accused person are to perpetuate the testimony' and to ascertain whether the accused should be admitted to bail, and the prisoner can only be questioned upon the charge against him after all the evidence incriminating him has been received. Not only must he be free at the examination from the influences of hope or fear, but he must realize that he is so. Hence he must not be sworn; and if by mistake his statement is taken under oath, it will be inadmissible upon the ground that its free and voluntary character has been destroyed by adding to the existing embarrassment of his condition the apprehension of a possible punishment for perjury. But the fact that a person who voluntarily appears before a magistrate and confesses is sworn does not render his confession inadmissible. The signature of the accused, unless required by statute to his statements, which have been committed to writing, is not indispensable; but as it 1 Rex v. Simmons, 6 C. & P. 540, Cal. 421; 24 Pac. Rep. 1006; Miller and cases in last note. v. State, 62 Miss. 221; 8 S. Rep. 273; State v. Riley, 8 S. Rep. 469; 42 La. 2 Woolfolk v. State, 85 Ga. 69. 3 State v. Mitchell, Phill. (N. C.) L. Ann. 995; State v. Jackson, 9 Mont. 458. 447. So it is frequently provided by statute that the evidence of witnesses on the preliminary examination, when committed to writing, shall be admissible on the subsequent trial of the accused in case they shall be dead, absent from the state or otherwise unable to testify. McCollum v. State, 14 S. W. Rep. 1020; 29 Tex. App. 162; Potts v. State, 26 Tex. App. 663; 14 S. W. Rep. 446; People v. Nelson, 85 51 Greenl. on Evid., § 225; Salas v. State, 31 Tex. Crim. R. 485; People v. Gibbons, 43 Cal. 557; Com. v. Brown, 150 Mass. 330; State v. Garvey, 25 La. Ann. 191; Hendrickson v. People, 10 N. Y. 13. Cf. People v. Kelley, 47 Cal. 125; Rex v. Lewis, 6 C. & P. 161; Reg. v. Owen, 9 id. 238. 6 People v. McGloin, 91 N. Y. 241; Com. v. Clark, 130 Pa. St. 650; 18 Atl. Rep. 988. |