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Guild, 10 N. J. L. 192, 18 Am. Dec. 404; Spears v. State, 2 Ohio St. 583; Com. v. Taylor, 5 Cush. 605; Com. v. Tuckerman, 10 Gray, 190; Smith v. State, 10 Ind. 106; Miller v. People, 39 Ill. 457; Cain v. State, 18 Tex. 387; Davis v. State, 2 Tex. App. 588; Van Buren v. State, 24 Miss. 512; Jordan v. State, 32 Miss. 382; People v. Barric, 49 Cal. 342; State v. York, 37 N. H. 175; Miller v. State, 40 Ala. 54; Porter v. State, 55 Ala. 95; State v. Whitfield, 70 N. C. 356, and State v. Hagan, 54 Mo. 192, may all be cited in support of the views here expressed and the list might easily be increased very considerably. People v. Wolcott, 51 Mich.

612.

As we have seen, if the confession is not elicited by any promise or threat and is voluntary on the part of the accused, it is admissible. People v. Wentz, 37 N. Y. 309. It is not sufficient to exclude a confession by a prisoner that he was under arrest at the time, or that it was made to the officer in whose custody he was, or in answer to questions put to him, or that it was made under hope or promise or a benefit of a collateral nature. Joy, Confessions, § 13; Rex v. Lloyd, 6 Car. & P. 393; State v. Tatro, 50 Vt. 483.

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A distinction should be recognized in this connection, which rejects evidence of a confession extorted during the excitement and turmoil of riot, mob violence, or other forcible means. such cases the imminent danger of great bodily harm may prompt a person to solemn statements even under oath, the only object of which is to avoid the peril and apprehension of the moment. Young v. State, 68 Ala. 569; State v. Revells, 34 La. Ann. 381, 44 Am. Rep. 436; Miller v. People, 39 Ill. 457; Jordan v. State, 32 Miss. 382.

The theory underlying the principle in the text last cited, is of extending influence and in many jurisdictions the rule obtains that where the confession is induced by some promise of favor or threat of harm emanating from some person of official character, or believed by the accused to sustain an official relation, the confession should be excluded. Spears v. State, 2 Ohio St. 583; Com. v. Tuckerman, 10 Gray, 173; People v. Wolcott, 51 Mich. 612; State v. Revells, supra.

The foregoing reasoning will exclude a confession of crime, by one who was told that if he did not confess to the speaker he would have to confess to a justice of the peace. Johnson v. State,

76 Ga. 76. And, similarly, a confession is not admissible when made by a defendant who sought the sheriff to find out if a confession would not be better for him, and was encouraged by the sheriff to think that it would be. People v. Thompson, 84 Cal.

598.

When a confession has been obtained through illegal influences, such influences will be presumed to continue and color all subsequent confessions, unless the contrary is clearly shown. Coffee v. State, 25 Fla. 501; Murray v. State, 25 Fla. 528.

Any, the slightest, menace, or threat, or any hope engendered or encouraged that the prisoner's case will be lightened, meliorated, or more favorably dealt with, if he will confess-either of these is enough to exclude the confession thereby superinduced. Any words spoken in the hearing of the prisoner, which may in their nature, generate such fear or hope, render it not only proper but necessary that confessions made within a reasonable time afterwards shall be excluded, unless it is shown by clear and full proof that the confession was voluntarily made, after all trace of hope or fear had been fully withdrawn or explained away, and the mind of the prisoner made as free from bias and intimidation as if no attempt had ever been made to obtain such confessions. Owen v. State, 78 Ala. 425.

"Public policy absolutely requires the rejection of confessions obtained by means of inducements held out by persons in authority. It may be true, even in such cases, owing to the variety and character of the circumstances, that the promise may not in fact induce the confession. But as it is thought to succeed in a large majority of instances, it is wisely adopted as a rule applicable to them all. We cannot too strongly urge on the district attorneys never to offer evidence of confessions, except it has first been made to appear that they were made voluntarily." People v. Barrie, 49 Cal. 345.

§ 311. Great Caution Enjoined in Receiving. To be relevant and hence admissible, it must clearly appear that the confession was entirely voluntary. The reason for this rule is very well stated in State v. Fields, Peck (Tenn.) 140, that "the evidence of such confession is liable to countless abuses. They are made by persons, generally, under arrest, in great agitation and distress, when each ray of hope is eagerly caught at, and frequently under the delusion, though not expressed, that the merit of a disclosure

will be productive of personal safety. To disclose the confession is odious as a breach of confidence, which it is at all times. The confession is made in want of advisers, under circumstances of desertion by the world, in chains and degradation, with spirits sunk, fear predominant, hope fluttering around, purposes and views momentarily changing, a thousand plans alternating, a soul tormented with anguish, and difficulties gathering into a multitude -how easy it is for the hearer to take one word for another, or to take a word in a sense not intended by the speaker, and, for want of an exact representation of the tone of voice, emphasis, countenance, eye, manner, and action of the one who made the confession, how almost impossible it is to make a third person understand the exact state of his mind and meaning. For these reasons such evidence is received with great distrust and under apprehensions of the wrong it may do. Its admissibility is made to depend on it being free of the suspicion that it was obtained by any threats or severity or promise of favor, and of every influence, even the minutest." Heldt v. State, 20 Neb. 492, 57 Am. Rep. 835.

As previously stated, before the confessions of a party charged with crime are admissible in evidence against him, it must be shown that such confession was freely and voluntarily made. This widely accepted rule is sustained by numerous authorities. See Thompson v. Com. 20 Gratt. 724; Simon v. State, 5 Fla. 285; State v. Carr, 37 Vt. 191; Dixon v. State, 13 Fla. 636; State v. Walker, 34 Vt. 296; Metzger v. State, 18 Fla. 481; Com. v. Whittemore, 11 Gray, 201; Flanagin v. State, 25 Ark. 92; Com. v. Tuckerman, 10 Gray, 173; State v. Staley, 14 Minn. 105; State v. Squires, 48 N. H. 364; Cady v. State, 44 Miss. 332; People v. Phillips, 42 N. Y. 200; State v. Lowhorne, 66 N. C. 638; State v. Howard, 17 N. H. 171; O'Brien v. People, 48 Barb. 274; Frain v. State, 40 Ga. 529; Vaughan v. Com. 17 Gratt. 576; State v. Brockman, 46 Mo. 566; Price v. State, 19 Ohio, 423; Frank v. State, 39 Miss. 705; Mose v. State, 36 Ala. 211; State v. Ostrander, 18 Iowa, 435; Aaron v. State, 37 Ala. 106; Austine v. People, 51 Ill. 236; Joe v. State, 38 Ala. 422; Miller v. People, 39 Ill. 457; Love v. State, 22 Ark. 336; People v. Jim Ti, 32 Cal. 60.

But it is a rule of law of equally wide acceptance that the confessions of parties charged with crime should be acted upon by

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courts and juries with great caution. Deathridge v. State, 1 Sneed, 75; People v. Johnson, 41 Cal. 452; Simon v. State, supra; Dixon v. State, 13 Fla. 636; Metzger v. State, 18 Fla. 481; People v. Rulloff, 3 Park. Crim. Rep. 438; 1 Greenl. Ev. § 200; Best, Ev. 537. The wisdom of this rule cannot be questioned, for the reason that, notwithstanding the confessions of persons accused of crime have been held to be evidence of the very highest character, upon the theory that no man would acknowledge that he had committed a grave crime unless he was actually guilty; but experience teaches that this theory is a fallacy, for it is a fact that numbers of persons have confessed that they were guilty of the most heinous crimes, for which they suffered the most horrible punishments, and yet they were innocent.

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In comparatively recent times men and women confessed that they were guilty of witchcraft-and given to experiments in materialization and hypnotics-and at this day, men, through fear of personal punishment, or through hope or averting punishment, confess that they are guilty of crime, without the slightest foundation in truth for such confession, and for these reasons, we say that the theory that men will not confess to the commission of crimes of which they are innocent is a fallacy.

There is another rule of law, and it has its foundation in justice, and that is, that when a confession has, in he first place, been made under illegal influences, such influences will be presumed to continue and color all subsequent confessions, unless the contrary is clearly shown. Simon v. State, 5 Fla. 285; Love v. State, 22 Ark. 336; Whart. Crim. Ev. 677; 2 East, P. C. 658; Best, Ev. 537; Roscoe, Crim. Ev. 40; Heard, Crim. L. 189; Peter v. State, 4 Smedes & M. 37; Joe v. State, 38 Ala. 422; Dinah v. State, 39 Ala. 359; Ward v. State, 50 Ala. 120; Thompson v. Com. 20 Gratt. 724; Redd v. State, 69 Ala. 255; Barnes v. State, 36 Tex. 356; People v. Jim Ti, 32 Cal. 60; Deathridge v. State, 1 Sneed, 75; People v. Johnson, 41 Cal. 452; State v. Howard, 17 N. H. 171; Austine v. People, 51 Ill. 236; State v. Jones, 54 Mo. 478; State v. Brockman, 46 Mo. 566; 2 Russell, Crimes, 832; 2 Stark. Ev. 49.

§ 312. Province of Court and Jury with Reference to.-If, by comparison, the confessions are to be in harmony and consistency with all the other evidence, they may be received as true, though believed by the jury to be involuntary. But the deter

mination of their incredibility is exclusively their province, and the court will have invaded the province of the jury, if it instructed them to reject the confessions as wanting in credibility, if they were not made freely and voluntarily. Young v. State, 68 Ala. 569; Redd v. State, 69 Ala. 255.

§ 313. Confessions not Conclusive.-"The fallacy of attributing a conclusive effect to confessorial evidence was detected by the intelligence of later times, and has been abundantly confirmed by experience. Why must a confession of guilt necessarily be true? Because, it is argued, a person can have no object in making a false confessorial statement, the effect of which will be to interfere with his interest by subjecting him to disgrace and punishment; and consequently the first law of nature-self-preservation-may be trusted as a sufficient guaranty for the truth of any such statement. This reasoning is, however, more plausible than sound. Conceding that every man will act as he deems best for his own interest, still (besides the possibility of his misconceiving facts or law) he may not only be most completely mistaken as to what constitutes his true interest, but it is an obvious corollary from the proposition itself, that when the human mind is solicited by conflicting interests the weaker will give way to the stronger; and consequently, that a false confessorial statement may be expected, when the party sees a motive sufficient, in his judgment, to outweigh the inconveniences which will accrue to him for making it. Now, while the punishment denounced by law against offenses is visible to all mankind, not only are the motives which induce a person to avow delinquency confined to his own breast, but those who hear the confessorial statement often know little or nothing of the confessionalist, far less of the innumerable links by which he may be bound to others who do not appear on the judicial stage. The force of these considerations will be better appreciated when we come to examine separately the principal motives to false confessions; but first, as connected with the whole subject, must be noted a marked distinction between our judicature and that of most foreign nations." Best, Ev. § 554.

§ 314. Credibility of the Witnesses Proving may be Examined. The credibility of the witnesses, who may prove confessions, and of the confessions themselves, are legitimate subjects of inquiry, and may be impeached in any authorized mode.

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